
    Fanny M. Bedlow, Respondent, v. Sarah A. Stillwell, Appellant.
    
      Vrivolous answer,— what is not, in an action to recover dower.
    
    A pleading is not frivolous unless it. is, upon a bare inspection, indicative of bad faith. A decision that a pleading is not frivolous is not an adjudication that it is not demurrable.
    In an action brought to recover a sum alleged to be due to the plaintiff under a judgment awarding her dower in certain property, the complaint alleged that the plaintiff’s husband conveyed ihe property in question to the defendant by a convej-ance in which she did not join, and that a judgment had been rendered determining that she was entitled to dower in such premises from February 21, 1894; that the defendant who "was in possession, claiming tobe sole owner, had leased the premises, and it demanded judgment for one-third of the rentals received by the defendant since February 21, 1894.
    The answer denied that the judgment referred to in the complaint adjudged that one-third of the annual rental value .was to be paid to the plaintiff, and alleged that the judgment fixed no sum tobe paid after February 21,1894. For a second defense, it alleged that the former judgment which awarded damages to the plai'HíiprjfOQnstit.uted a bar te a further recovery. For a third -tjefense, it admitted that the plaintiff’s husband conveyed the property to the defendant by a. conveyance in which the plaintiff did not join, and that the defendant had leased the property', but denied all other allegations relating to1 these facts. For a fourth defense, it alleged that the former judgment adjudged 'that, since TVIay 16, 1891, the children of the plaintiff’s husband were the owners of the premises; and, for a fifth defense, it asserted that the plaintiff had not obtained leave from the court to bring the action.
    
      Held, that it could not be said upon a bare inspection of the answer that the defenses alleged were indicative of bad faith or so wanting in substance as.tó justify' their being overruled as frivolous.
    
      Quósre, whether the alleged defenses were demurrable.
    Appeal by the defendant, Sarah A. Stillwell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Hew York on the 7th day of July,. 1899, upon the decision of the court, rendered after a trial at the Hew York, Special Term, overruling the amended answer of the defendant as frivolous.
    
      George W. Stephens, for the appellant.
    
      George B. Covington, for the .respondent.
   O’Brien, J.:

The plaintiff moved to overrule the amended answer herein as frivolous and for judgment thereon, and from the order entered granting such motion, the defendant appeals.

The rule to be applied upon motions to strike out a pleading as frivolous has been so many times stated that a restatdment would seem to be unnecessary, and yet the failure of the court below to apply it requires a reference thereto. The distinction between a motion to-strike óut a pleading as frivolous and the question presented on. demurrer must not be lost sight of. One is a summary way of getting rid of the pleading on motion, and the other is the orderly manner of1 proceeding by argument to try the issue of law. On demurrer a pleading after argument and deliberation might be held bad, which, on motion, should not -be stricken out as frivolous. A pleading is not frivolous unless it is indicative of bad faith in the pleader upon bare inspection. If any extended argument is needed to show its insufficiency it is not frivolous. In Trumbull v. Ashley (26 App. Div. 356) it was said : “ It was not within the province of the court to overrule the answer upon the ground that it was frivolous. ‘ .An answer can be said to be frivolous only when it is so clearly bad as to require no argument,’ says Justice Rdmsey, in the case of Gruenstein v. Jablonsky (1 App. Div. 580), ‘to show its character, and which would be said to be so manifestly defective as to be indicative of bad faith upon a mere inspection. (Strong v. Sproul, 53 N. Y. 497.) Unless it appears by inspection of the pleading that it raises no issue upon any fact which the plaintiff, must prove it is not frivolous, however objectionable it may be in other respects.’ ‘An answer must be tested,’ says Justice Landon in the case of West End Savings & Loan Association v. Niver (4 App. Div. 618), ‘ by the complaint, and if it puts in issue its material allegations as to the defendant it is good enough for the purposes of the action.’ ‘ We think, therefore, upon reason as well as upon the construction of the Code,’ says Judge Andrews in delivering the opinion of the court in the case of Bennett v. Leeds Manfg. Co. (110 N. Y. 150), ‘ a denial in a verified answer of a material allegation in the complaint, ‘ upon information and belief,’ is good. * * * ’ The denial of a material fact is not frivolous, * * * and the court below was clearly in error in overruling the answer of the defendant.” (See, also, Schoonmaker v. Mayor, 7 N. Y. St. Repr. 430; Griffin v. Todd, 48 How. Pr. 15.)

And in Hill v. Warner (39 App. Div. 425) it. was said : “ A frivolous pleading is one which, on inspection, is inherently bad, that is, it contains no defense. While it may be quite apparent the pleading is interposed to gain time, the court cannot say on a bare examination of it that this denial of a material allegation of the complaint is made for that purpose. Issues raised in a permissible manner cannot be disposed of in that summary way.”

To determine whether the answer herein was frivolous necessitates a brief reference to the pleadings. The action was brought to recover a sum alleged to be due the plaintiff in accordance with a judgment entered August 14, 1894, awarding her dower in certain property. As shown by the pleadings, the plaintiff is-the widow of. Alfred Bedlow, who died May 16, 1891, and she claims as dower a share in certain property conveyed by her husband to the defendant, in which conveyances she did not join. The complaint states that the defendant claims in this property a fee estate, and describes it as “Aone-sixth undivided interest * * * of a certain lot * * * of land, * * -x" together with all the bulkheads, wharves and piers, * * * with all advantages, rents, issues, profits and appurtenances thereunto belonging, * * * and a one-sixth undivided-interest' * * * of the pier and dock property known as Pier 49, East River.”

After alleging the judgment.giving her dower in this property and that the defendant is in possession of it claiming to be sole owner, the complaint states that the .defendant, as owner, leased the said premises on May 1, 1892, for a term of ten years-at a rental of $2,166.66, receiving since February 21, 1894— from which time by the judgment dower was to be computed — the sum of $10,833.40, and, over and above all expenses up to January 30,1899, $9,622.70, for a third of which sum, or $3,207.36, the plaintiff claims judgment should be given her. ■

For a first defense, the answer denies that the judgment referred to adjudged that a sum equal to one-third of the annual rental value of the property described was to be paid the plaintiff by the defendant, and alleges that the judgment fixed no sum after February 21, 1894, but did fix a sum due her up to that date, which sum has been paid her. For a second defense, it is claimed that by the aforesaid judgment, damages of $1,495.38 were awarded, which were paid, the judgment thereby constituting a bar to any further recovery. For a third defense, the answer admits the transfer to the defendant by the plaintiff’s husband of the property mentioned, in which conveyances the plaintiff did not join, and that the defendant has leased the property as alleged, but denies all other allegations relating to -.these facts. For a fourth defense, it is stated that by the judgment awarding the dower in the property, it was adjudged that since May 16, 1891, the children of the plaintiff’s husband were and have been the owners of the premises described, from' which judgment the defendant has an appeal now pending; and for a fifth and last defense it is asserted that no leave .by court has been granted to permit the bringing of this action.

The .appellant’s argument upon this appeal is based upon the contention that the complaint failing to allege ownership in the ■defendant, is fatally defective. It is pointed out that a judicial -decision has been rendered—to which the plaintiff and defendant herein were parties — that the defendant was at no time, during the period for which it is sought to charge her, the owner of the property, but that it was owned by the children of Alfred Bedlow. And it is shown that although the defendant did, as a matter of fact, collect rents-for the period mentioned, the true owner by virtue of ■■such judgment will recover mesne profits for the entire period lie has been kept out of possession. Accordingly, it is urged, it would be unjust to subject the defendant to the burden of paying the ■entire rents and profits to the owners of the property, and, in addition, compel her to pay the plaintiff’s dower; that she would thereby be called upon to pay twice — once to the owners of the property, .■and then again to the widow. For this reason — the widow having the right under section 1614 of the Code of Civil Procedure to collect the entire amount of her dower from the children of Alfred Bedlow — it is claimed that it is essential to the maintenance of such .-an action as this that there should be in the .complaint an express allegation of ownership on the part of the defendant for the period for which the dower is demanded, the liability under the. statute being entirely dependent on ownership.

The question is thus presented as to whether dower can be asserted against any one but the owner of the property. Whether or not such a contention is sound is unnecessary for us to determine ■on this appeal further than to say that it is not frivolous.

There is the further question raised by the fifth defense that no leave has been granted by the court to bring this eiction pending the other appeal. This, on bare inspection, is not frivolous. The ■defenses denying that the plaintiff has correctly stated what the judgment awarding dower actually decreed, in the absence of the judgment itself, are not frivolous.

It may be that upon demurrer these defenses will be held bad ; but it cannot be said that upon bare inspection they are indicative •of bad faith or are so wanting in substance as to justify their being overruled on motion as frivolous.

The order and judgment thereon should be reversed, with costs to the appellant to abide the event; and the motion denied, with ten dollars costs, but with leave to .the plaintiff to demur or take such other action as she may be advised. ' '

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

Judgment and order reversed, With costs to appellant to abide event, and motion denied, with ten dollars costs, but, on. payment of stich costs, with leave to1 plaintiff to'demur-or take Such other action as she may be advised.  