
    Jessie L. Colt, Resp’t, v. George K. Davis, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed, November 20, 1888.)
    
    PitAOTICE—IbEELEVANT OB FBIVOLOUS AES WEB—HOW DISPOSED OF—CODE Crv. Pbo., §§ 537 538.
    There is now no authority for striking out an answer as irrelevant. Ir■relevant is equivalent to ** frivolous." A frivolous answer is not stricken •out, but judgment is granted thereon. A frivolous answer must be treated as an entirety, and a judgment cannot be rendered for plaintiff when a part only of the answer is frivolous.
    
      H. B. Cushing, for app’lt; R. B. Fish, for resp’t.
   Learned, P. J.

An action was brought January 30, 1888, by plaintiff against defendant on a promissory note for $5,000, signed by defendant and John I. Davis, payable to the order of Mrs. Robert A. Colt.”

Another action was brought February 21, 1888, by plaintiff against defendant on another note for $2,000, signed by defendant and payable to plaintiff’s order.

Each complaint alleges that plaintiff is the holder and -owner of the note therein described.

To each complaint the defendant put in an answer, defense 2 and 3, denying information and belief that plaintiff is the holder and owner of the note, and overing that Robert A. Colt is such owner and holder.

In each answer the defendant sets up defenses that Robert A. Colt gave defendant his promissory note for $805.36, now due and payable and now held and owned by •defendant.

Also payment of $670.

Also work, labor and services done and performed, etc., worth 1,000.

A motion by defendant to consolidate and a motion by plaintiff to strike out portions as sham and irrelevant, and for judgment, were heard together.

I. The court order defenses two and three to be stricken «out as sham.

8. Defense five to be stricken out as irrelevant.

3. The actions to be consolidated.

4.. The answer in the second action to be stricken out.

5. The consolidated action to be severed and jugdment rendered for $5,267.67, with interest, and continued for the remainder of plaintiff’s claim, $1,670. with interest.

This was based on two affidavits of plaintiff and her husband, made out of this state to the effect that she is, and he is not, the holder-owner of the notes.

Also, on the admission of defendant’s attorney that the-payments and counterclaims set up in the two answers are-identical.

There is now no authority for striking out an answer as-irrelevant. Code, §§ 537, 538. “Irrelevant” is equivalent, to “frivolous.” A frivolous answer is not stricken out, but judgment is granted thereon (Strong v. Sproul, 53 N. Y., 479), in which case it is also held that a frivolous answer must be treated as an entirety, and that a judgment could not be rendered for plaintiff when a part only of the answer was frivolous. Therefore the fifth defense could not be stricken out as irrelevant.

Thompson v. Erie Railway Company (45 N. Y., 468), holds that a denial of part of the material allegations in a complaint cannot be stricken out as sham; just as Wayland v. Tysen, in the same volume, had held that such a denial of all the allegations in the complaint could not be stricken out as sham.

In Hays v. Southgate (18 Albany L. J., 318; S. C., 10 Hun, 511), it was held that a defendant might show that the plaintiff was not and some- other person was the owner of the note in suit.

In Conselyea v. Swift (103 N. Y., 604; 4 N. Y. State Rep., 278), cited by plaintiff there was no denial by defendant of' any allegation in the complaint. And it was held the defendant had the affirmative of the issue, and it will be seen by that case that defendant set up an affirmative defense and that his allegations as to ownership were merely a conclusion from that defense, viz.: that he was an accommodation endorser, etc.

The two actions being consolidated, > we see no authority for striking out an answer of one of them. It could not be said to be sham, and there is no other ground laid down for striking out an answer. Code, § 538. The judgment-roll should contain the pleadings in both actions. 2 Wait’s Prac., 261.

We think that the order except as to the consolidation should be reversed, with ten dollars costs and printing disbursements, and motion denied, ten dollars costs.

Ingalls, J., concurs.

Landon, J.

Strong v. Sproul (53 N. Y., 497), cited above was decided in 1873. The present Code (section 508), authorizes a “partial defense.” If a partial defense is sham or frivolous, it should not prevent the plaintiff from obtaining judgment upon that part of his claim which is only met by such a worthless answer; he should upon motion be allowed to enter judgment for the undefended part of his. demand, and the action should be severed and should continue as to the defended part. Sections 511, 512.

If on defendant’s motion two actions are consolidated, his duplicate answers of the same matter are not necessary, hut whether one of them be stricken out or not is immaterial; one is only a copy of the other.

I think the plaintiff’s practice was right, but I concur in the result for the reason that the verified denial of the plaintiff’s title cannot be stricken out as sham, and if that remains the other defense cannot be said to be frivolous, and whether there are duplicate answers to the consolidated actions does not seem to be material.  