
    Charles L. Zimmerman, Respondent, v. Emil B. Meyrowitz, Appellant.
    (Action No. 3.)
    
      Pleading—when ii may he declared to he frivolous — when it may he stricken out as sham, — effect of a failure to allege a material fact.
    
    A pleading should not be declared frivolous if any argument is required to show its frivolity.
    An answer cannot be stricken cut as sham unless its falsity be made to appear beyond a reasonable doubt.
    An answer, averring matters which constitute a defense to the action, cannot be stricken out as sham simply because the defendant fails to allege therein a material fact which he had alleged in a previous answer that had been declared bad on demurrer.
    Appeal by the defendant, Emil B. Meyrowitz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of September, 1902, upon an order made at the New York Special Term and entered in said clerk’s office on the 19th day of September, 1902, striking out the separate defense contained in the defendant’s answer as sham, and awarding judgment to the plaintiff upon the remainder of the answer, and also from said order upon which the judgment was entered.
    
      John L. Hill, for the appellant.
    
      J. Noble Hayes, for the respondent.
   Hatch, J.:

It appears from the proceedings had before the learned court at Special Term that he adjudged that a part of the answer was sham and the remainder frivolous, and thereupon ordered the former stricken out and awarded judgment. The practice is well settled that frivolous pleadings may not be declared such and judgment ordered thereon if any argument is required to show their frivolity. (Cook v. Warren, 88 N. Y. 37.) In this case we have but to refer to the ten pages of brief, submitted by the respondent in support of the order, in order to determine that an argument was necessary to demonstrate its character. A sham answer may not be stricken out, except that its falsity be made to appear beyond a reasonable doubt. In the present case we do not think it appears; but, on the contrary, if its averments be true, a good defense is disclosed therein; and no basis exists for holding that the answer is false.

By the record the following facts are disclosed : The plaintiff was the inventor of an acetylene gas lamp, which he desired to sell or procure to be manufactured. For this purpose the parties entered into a contract whereby the plaintiff agreed to give to the defendant the exclusive right to manufacture and sell said lamp in the United States, and the defendant agreed to pay therefor a certain royalty. The defendant having failed to fulfill the contract by manufacturing and selling the lamps, an action was brought to recover the royalty therein reserved. The defendant answered by averring that he was induced to enter into the contract by reason of false and fraudulent representations made by the plaintiff to the effect that said lamp was in all respects practical, had been thoroughly tested, and other matters, showing that the invention was practical and valuable. The answer then proceeded to negative these statements by averring that the said lamp would network ; that it was not practical and that it could not be made to perform what the plaintiff had stated and represented it would do, and that it was wholly useless. This answer also contained an averment in the following language, after stating the representations made by the plaintiff, “that defendant’s agent then tested said lamp thus exhibited, but it was immediately apparent that the illuminating jet was defective, seeing which, plaintiff declared that that difficulty was owing wholly to a defective burner, a statement which seemed probable, and which defendant’s said agent believed to be true; that no further test was then made, nor was the same practical at any time, because it would require practical use of the lamp having sufficient length of time to determine, (first) that the illuminating jet could be controlled and adjusted according to said representation, and (second) if the lamp was satisfactory in other respects, then, if the valve itself and other apparatus would continue to perform its work when applied in practical use.”

To this answer the plaintiff demurred as being insufficient upon its face to constitute a defense, and thereupon defendant served an amended answer, which was held bad on demurrer, and leave was given to plead over. Thereupon the defendant served the present answer, omitting the counterclaim and also omitting the averment contained in the former pleading to the effect that a test had been made, but otherwise averring in substance and effect the false and fraudulent representations that the lamp had been thoroughly tested, been found safe and would work practically for the purposes for which it was intended, then "averring the false character of such representations, that the defendant relied thereon, and that he would not have entered into the contract had he known of such defect.

The motion to strike out as sham was granted upon the ground that the defendant had deliberately suppressed the fact that a test had been made at the time false representations were made, in consequence of which the pleading was false. If the present answer averred matters which would constitute a defense to the action, then it could not be stricken out as sham, even though matter had been omitted therefrom which was material to the defendant, or of which only a part had been averred. The pleading, as served, avers a material representation as an inducing cause to the entering into the contract, viz., that the defendant represented that he had thoroughly tested the lamp and that it would work practically and was valuable. This was the inducing cause which prompted the defendant to enter into the engagement, and if it was false it would avoid the contract. The answer avers reliance on the representations and negatives their truthfulness. This, if proved, is a good defense, and under the pleadings the testimony is admissible. (Publishing Co. v. S. S. Co., 148 N. Y. 39 : Farmers & Citizens' Bank v. Sherman, 33 id. 69.)

Assuming, however, that the court was justified in examining the first pleading in order to determine whether there had been a deliberate suppression of a material fact which would render the answer sham, we think that such examination not only failed to disclose such fact, but that it also constitued matter of defense. What is therein called a test was a statement of what was done, and it appears from the entire allegation that it was insufficient in character for the defendant to determine whether any defect existed in the lamp or not, It is to be presumed that the defendant was without information upon the subject and the plaintiff was possessed of full knowledge. When the lamp failed to work in the test to which it was then subjected, as averred in the pleading, the plaintiff attributed the defect to a cause quite independent of the practical working of the lamp and its valves. And if this be true, as we are bound to assume it was, then it necessarily follows that such statement and representation was as misleading and false as was the representation that the plaintiff had "tested the lamp and that it would work practically. Instead, therefore, of being a test which would conclude the defendant from thereafter raising any question as to the falsity of the representations in respect thereto, it constituted an additional misrepresentation as misleading and damaging to the defendant as any other, and if established upon the trial would defeat a recovery for the royalties sought to be recovered in the action. In no view, therefore, was the court justified in striking out this answer as sham.

It follows that the order and judgment based thereon should be reversed and set aside, with costs and disbursements to the appellant.

Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.

Order and judgment reversed and set aside, with costs and disbursements to the appellant.  