
    N. Y. SUPERIOR COURT.
    Abraham B. Kain agt. Christian F. Dickel.
    
      New York Superior Court, Special Term,
    
    
      October, 1873.
    A demurer cannot be stricken out as sham.
   Van Vorst, J.

The defendant has interposed a demurrer to the complaint. ' The ground of demurrer is that the complaint, as appears from the face thereof, does not state facts sufficient to constitute a cause of action.

The plaintiff now moves to strike out the demurrer as sham.

The plaintiff has mistaken his remedy.

Section 152 of the Code provides that sham and irrelevant defenses may be stricken out on motion.

A demurrer of this character is not interposed by way of defense. It concedes the allegations of the complaint, and substantially claims that they require no defense; that, notwithstanding their truthfulness, they give the plaintiff no cause of action.

Under the Code, defenses are to be set up by answer (§ 149, subdivision 2; § 150, latter part of subdivision 2), and if a defense, so set up, be sham, it may be stricken out under section 152.

A defense applies to any facts which defeat the action wholly or partially (Stewart agt. Travis, 10 How., 148; Houghton agt. Townsend, 8 How., 441; Foland agt. Johnson, 16 Abb., 235).

If there is no just ground for this demurrer, it may be treated as frivolous, and the plaintiff’s remedy is under section 247 of the Code.

He may move, on a notice of five days, for judgment thereon, and on such motion the sufficiency of the pleading may be determined.

Motion denied.  