
    The Joseph Dixon Crucible Company vs. The New York City Steel Works.
    An order denying a motion to strike out a pleading as frivolous cannot 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'shall be so stricken out or not. 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 a judge improperly holds a pleading to be frivolous, the order is appealable, because the party putting in' the pleading loses a right to such a 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.
    A pleading, to be frivolous, must show its defects on the first inspection.
    APPEAL from, an order refusing to strike out an answer as frivolous.
   By the Gourt, In OR ah am, P. J.

The answer is clearly-had, 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 shall be so stricken out or not.

The practice of allowing counsel to argue in favor of or against such a motion has been permitted, 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 frivolous, and 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 holds a pleading to be frivolous, the order is appealable, because the party putting in the pleading loses a right to such a pleading, but the reverse is not true. Ho 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 systems, a pleading, to be frivolous, must show its defects on the first inspection. (See Fillette v. Herman, 8 Abb. N. S. 193, n.)

[First Department, General Term,

September 5, 1870.

Order affirmed, without costs.

Ingraham, P. J., and Oardozo, Justice.]  