
    RAISIN v. SCHECHTMAN.
    (Supreme Court, Appellate Term, First Department.
    January 15, 1915.)
    Pleading (§ 364) — Sham and Frivolous Answer — Material Issue.
    Portions of defendant’s answer which put in issue material allegations of the complaint cannot be stricken as sham or frivolous.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 1156-1162; Dec. Dig. § 364.*]
    Appeal from City Court of New York, Special Term.
    Action by Isidor Raisin against Louis Schechtman. From an order striking certain denials in defendant’s answer, on the ground that they were frivolous and sham, defendant appeals.
    Reversed, and motion to strike denied.
    Argued January term, 1915, before GUY, BIJUR, and GAVEGAN, JJ.
    Floyd K. Diefendorf, of New York City (John T. Fadden, of New York City, of counsel), for appellant.
    Eugene Moskovitz, of New York City (Sydney Rosenthal, of Brooklyn, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The court has no power to strike out portions of defendant’s answer as sham or frivolous which put in issue material allegations of the complaint. Schlesinger v. McDonald, 106 App. Div. 570, 94 N. Y. Supp. 721; Howe v. Elwell, 57 App. Div. 357, 67 N. Y. Supp. 1108; Alexander v. Aronson, 65 App. Div. 174, 72 N. Y. Supp. 640.

The order must therefore be reversed, with $10 costs and disbursements, and motion denied, with $10 costs.  