
    George Schmidt, Plaintiff, v. Robert McCaffrey, Defendant.
    (Supreme Court, Nassau Special Term,
    May, 1901.)
    Pleading.
    A general denial cannot be stricken out as sham under Code Civ. Pro., § 538, but only a “ defence ”. A “ denial ” is not a “ defence ” in the terminology of pleading.
    Motion to strike out the answer as sham. The answer is a general denial only.
    Edward L. Frost for plaintiff.
    John B. Merrill for defendant.
   Gaynor, J.

Section 538 of the Code of Civil Procedure is that “ A sham answer or a sham defence may he 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. Pro. § 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.  