
    SUPREME COURT.
    The New York Mutual Gas-light Company agt. The Mayor, &c., of the City of New York.
    
      New YorTc, Chambers,
    
    
      July, 1875.
    
      Frivolous answer.
    
    An answer by the city of New York to a complaint on contract for a claim for gas used by the department of parks, that the appropriation was exhausted, and that the claim had been incurred, if at all, by the department of parks in excess of the amount appropriated, held, frivolous.
    The Mew York Mutual Gas-light Company contracted with the department of public parks to light the lamps in the parks and squares for $36.50 per lamp. This contract was made on the 31st of April, 1873. A short time ago the company presented a bill for $2,865.12, amount due on- the contract from January, 1874, which the comptroller refused to pay. Suit for its recovery was brought in the supreme court, and the city put in an answer that the appropriation was exhausted, and that the claim had been incurred, if at all, by the department of parks in excess of the amount appropriated. The plaintiff’s counsel moved to strike out portions of the answer as frivolous and irrelevant, and to make it more definite.
   Donohue, J.

I. The first defense is sham. It is substantially that it is not convenient to pay.

II. The second defense is also frivolous, a. It is in the alternative, b. It does not state that there was no appropriation in the treasury when the contract was made, which is the only defense allowed by the law.

III. If the second defense be not frivolous, then the defendant should be compelled to make it specific by alleging the amount of the appropriation and how it has been spent.  