
    Churchill v. Witbeck, (two cases.)
    
      (Supreme Court, Special Term, New York County.
    
    February 10, 1890.)
    Pleading—Frivolous Answer.
    An answer in an action on a note which avers that there was “an entire failure of consideration” for the note, and which denies that “the amount, or any part thereof, is due, ” is not frivolous.
    At chambers. Two actions by Sarah P. Churchill against Cornelius V. Witbeck. One action was to settle up partnership business, and the other was on a promissory note executed by defendant to plaintiff. The answers averred that “there was an entire failure of consideration for the promissory note” set out in the complaint, and denied that “the amount [of the note,] or any part thereof, was due” to plaintiff. Plaintiff now moves for judgment, and to strike out the answers on the ground that they are frivolous.
    
      A. R. McMahon, for plaintiff. A. W. Nieholl, for defendant.
   Patterson, J.

The motions in these causes are to strike out the answers as frivolous, and for judgment. That these answers are inartificial, is clear, but they state distinctly that the defense is failure of consideration as between maker and payee of the notes; the suits being between those parties. It cannot be said that these defenses are clearly frivolous, and that a mere inspection of the answer shows it. The plaintiff is fully apprised of what the defenses are, and it is not at all clear that the answers would be bad on demurrer. Failure of consideration is a fact, and not altogether a conclusion to be drawn from the facts. At all events, the subject is fairly open to discussion, and therefore these motions must be denied. No costs in either of the motions.  