
    Ellwood Shaw, Respondent, v. Charles L. Feltman and Alfred Feltman, Appellants.
    
      Demurrer — when it will he adjudged, to he frivolous.
    
    To justify an adjudication that a demurrer to a complaint is frivolous, the demurrer must not only he without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection and indicates that the demurrer was interposed in bad faith.
    If any argument is needed to show that the demurrer is bad it is not frivolous. The mere fact that the demurrer is not well taken does not render it frivolous.
    Appeal by the defendants, Charles L. Feltman and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of October, 1904, overruling as frivolous the defendants’ demurrer to the plaintiff’s complaint.
    
      Joseph M. Gazzam, Jr., for the appellants.
    
      Maurice Fitz Gerald, for the respondent.
   Woodward, J.:

The plaintiff has attempted to set forth a cause of action for personal in juries due to the negligence of the defendants. The defendants have demurred on the ground that the complaint does not set forth facts sufficient to constitute a cause of action, and the plaintiff, under the provisions of section 537 of the Code of Civil Procedure, has moved the court to overrule the demurrer on the ground that it is frivolous, and this motion has been granted. The defendants appeal.

The complaint in this action is certainly not so clear and concise in its statement of facts that there is not room for a reasonable argument in support of the demurrer ; the plaintiff has attempted to set out an action both at common law and under the Employers’ Liability Act (Laws of 1902, chap. 600), and while it may be that, under the liberal rules applied to pleadings, a good cause of action may be proved under the allegations of the complaint, some of the defects called to our attention upon this appeal are worthy of consideration, and the defendants are entitled to a decision on the question of law raised by their demurrer. It is the province of an appellate court to review actual decisions, and the only question presented by this record is whether the demurrer is frivolous, and we are of opinion that it is not. To justify an order which so determines, or a judgment founded on such decision, the demurrer must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection, and indicates that its interposition was in bad faith. If any argument is required to show that the demurrer is bad it is not frivolous. (Cook v. Warren, 88 N. Y. 37, 39, and authorities there cited; Rankin v. Bush, 93 App. Div. 181, 185, and authorities there cited.) The mere fact that the defendants may have been mistaken, and that the complaint does state facts sufficient to constitute a cause of action, does not constitute a frivolous pleading. If it did, every demurrer which may be overruled may be set aside on motion, and thus there would never be any direct trial of the issue and an opportunity to reach a determination upon the merits of a pleading. “ The rule in this department is settled by a long series of decisions,” say the court in Rankin v. Bush (supra),that a pleading will not be regarded as frivolous unless its insufficiency is apparent upon a bare statement without argument, and when the trial courts disregard this rule and adjudge a pleading frivolous, this court has felt constrained to reverse the holding,” and we see no reason why this department should assert or maintain a different rule.

The order appealed from should be reversed and the motion denied, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.  