
    (34 Misc. Rep. 693.)
    SCHMIDT v. McCAFFREY.
    (Supreme Court, Special Term, Nassau County.
    May, 1901.)
    Pleading—General Denial.
    A general denial cannot be stricken out as sham, under Code Civ. Proc. § 538, authorizing the striking out of “a sham answer or a sham defense.”
    Action by George Schmidt against Robert McCaffrey. Motion to strike out answer as sham denied.
    Edward L. Frost, for plaintiff.
    . John B. Merrill, for defendant.
   GAYUOR, J.

Section 538 of the Code of Civil Procedure is that “a sham answer or a sham defence may be stricken out,” etc. This distinguishes an “answer” and a “defence'’ as separate things in the terminology of pleading, whereas the term “answer” includes the term “defence,” An answer may consist of a denial or denials only, or of a “defence” only, or of both. Code Civ. Proc. § 500. But a denial cannot be struck out as sham, i. e., false, but only a “defence.” Wayland v. Tysen, 45 N. Y. 281. This serves to illustrate the. difference in terminology between a “denial” and a defence.” The inexact and Unscientific language of the Code ought to be that a “defence” may be struck out as sham. There are no defences pleaded here, but only a general denial.

The motion is denied, with $10 costs.  