
    THE CRUCIBLE COMPANY against THE STEEL WORKS.
    
      Supreme Court, First Department, First District; General Term,
    November, 1870.
    Appeal. — Substantial Right. — Frivolous Pleading.
    
      It seems, that in an action by a corporation on a contract in writing with it by its corporate name, or for goods sold, an answer denying knowledge or information sufficient to form a belief whether plaintiffs are a corporation, is frivolous. So, also, is an answer alleging that such note was given in consideration of a sale of merchandise, which was of a bad quality and without value, and not what plaintiffs represented, and counter-claiming damages by reason thereof. So is an answer alleging the same failure of consideration in reference to the goods sold. So is an answer alleging that, in consideration of the worthlessness of the- goods, plaintiffs promised and agreed to renew the note sued on, for sixty days, but had failed to do so, and the sixty days had not expired.
    An appeal does not lie to the court at general term from an order denying a motion to strike out a pleading as frivolous. The application to strike out does not involve a substantial right of the applicant ; although, if such a motion were granted erroneously, the adverse party might appeal, because, by the erroneous striking out of his pleading, he would lose a substantial right.
    A pleading should not be struck out as frivolous on motion, unless it appears to the court to be such, on inspection, without argument. If argument be necessary, the party aggrieved should be left to a demurrer.
    Appeal from an order.
    This action was brought by the Joseph Dixon Crucible Company against the Yew York City Steel Works. The complaint alleged the plaintiffs’ incorporation ; and, for a first cause of action, a promissory note made by defendants to the order of the plaintiffs ; and, for a second cause of action, goods sold and delivered.
    The answer was as follows :
    u The defendants, answering the complaint herein, allege:
    
      “First. It has no knowledge or information sufficient to form a belief whether the plaintiffs are a corporation, as is alleged therein.
    
      “Second. For answer to the first cause of action, it alleges that the said note therein named was given in consideration of a sale of certain crucibles by plaintiffs to defendants ; that said crucibles were of bad quality and without value to defendants, and were not what the plaintiffs represented them to be; and that. by reason thereof the defendants suffered damage in the sum of one thousand dollars and upwards, which sum these defendants will counter-claim against any cause of action set out in the complaint.
    “ Third. For answer to the second cause of action, the defendant alleges that the goods therein named were without value, and were not what the plaintiffs represented them to be, and that thereby the defendants were damaged to the sum of one thousand dollars, or thereabouts.
    ‘ ‘ Fourth. For a fourth and further answer to the first cause of action, the defendants, referring to the second defense, and incorporating the same herewith, allege that, in consideration of the premises, the plaintiffs promised and agreed to renew said note for sixty days, and that said plaintiffs have failed so to do, and that said sixty days have not yet expired.
    <£ Wherefore,” &c.
    The plaintiffs moved for judgment on account of the frivolousness of the answer; and the motion having been denied at special term, the plaintiffs appealed.
    
      William F. Shepard, for the appellants;
    Insisted that the answer was clearly frivolous; and cited Connecticut Bank v. Smith (9 Abb. Pr., 168, 174).
    
      Goodrich & Wheeler, ion the respondents.
   By the Court.—Ingraham, P. J.

The appeal in this case is from an order refusing to strike out an answer as frivolous.

The answer is clearly bad, and if the motion had been granted, it would have been difficult to find any good reason for reversing the order. But we do not think an order which denies a motion to strike out a pleading as frivolous, can be reviewed on appeal.

It is not a substantial right to have it stricken out; on the contrary, it is a matter of discretion with the judge whether it should be so stricken out or not.

The practice has been permitted to allow counsel to argue in favor of, or against, such a motion, when the rule should be the other way. Under the old system, on an application of this character, no argument was' ever allowed. The court,. on inspection, would decide whether or not a pleading was frivolousand if any doubt existed, the motion would be denied. So, under our present system, if the pleading is not so bad as to show on its face that it is frivolous, no argument should be allowed, and the party should be left-to a demurrer.

If the judge improperly held a pleading to be frivolous, it is appealable, because the party putting in the pleading loses a right to such pleading ; but the reverse is not true; no right is lost, and the party objecting to its sufficiency may have it set aside on demurrer.

If a party making such a motion cannot satisfy a judge that the pleading is frivolous, even after an argument, he will not be allowed to have a second argument to make out a pleading frivolous, when, according to both the old and present system, a pleading, to be frivolous, must show its defects on the first inspection (see Fillette v. Hermann, 8 Abb. Pr. N. S., 193, note).

Order affirmed, without costs.  