
    John T. Halliday, Appellant-Respondent, v. Clarence L. Barber, Respondent-Appellant.
    (Supreme Court, Appellate Term,
    May, 1902.)
    Privolous pleading — Appeals in the City Court of the city of New York — Pleading not stricken from, the record — When frivolous.
    Where the Special Term of the City Court of the city of New York grants a motion for judgment on an amended answer as frivolous and judgment is entered on the order granting the relief, the defendant may appeal to the General Term of said court but, after entry of judgment, should appeal from it only.
    Where he appeals from both the order and the judgment and incorporates the order in his notice of appeal the order is brought up for review, the question brought before said General Term by the combined appeal is one of law, and from its determination, vacating the order and reversing the judgment, the plaintiff may appeal ito the Appellate Term. ,
    The granting of a motion for judgment on a pleading as frivolous does not strike the pleading from the record.
    A pleading is to be .deemed frivolous only in case it is so clearly without foundation that the defect appears upon mere inspection and without argument.
    Halliday v. Barber, 37 Misc. Rep. 840, reversed.
    Appeal by the plaintiff from an order of the General Term of the Oity Oourt of the city of ISTew York reversing an order of the Special Term overruling the amended answer of the defendant as frivolous and directing judgment for the plaintiff, and vacating a judgment entered pursuant to such order.
    Appeal by the defendant from so much of the order of the General Term of the said Oity Court as vacates the judgment entered upon the order overruling the defendant’s answer as frivolous instead of reversing it.
    Rider & Smith, for appellant-respondent.
    Clarence L. Barber, respondent-appellant, in person.
   Freedman, P. J.

The Special Term of the Oity Court, on plaintiff’s motion, made an order overruling defendant’s amended answer as frivolous and directing judgment thereon in favor of the plaintiff and judgment was thereupon entered against the defendant. The defendant appealed to the General Term of the Oity Court from the judgment and also from the order. The General Term reversed the order, vacated the judgment and denied plaintiff’s motion for judgment on the ground that the frivolousness of the amended answer was not so apparent that it could be determined without argument and without an examination of statutes and decisions.

If the Special Term had denied the motion as originally made, no appeal could have been taken, because section 537 of the Code of Civil 'Procedure expressly provides that: If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party.”

But the motion having been granted, an appeal by the defendant did lie to the General Term of the City Court. The important question then arises whether the appeal should have been from the order or judgment or both. Under the former Code the decisions upon this subject were conflicting. A collection of them may be found in Wait’s Practice (Vol. 3, pp. 594-596), to which the curious student is referred. But the weight of authority was that the appeal did not lie from the order, after judgment had been entered thereon, and that defendant’s remedy in such a case was by appeal from the judgment. Parker v. Warth, 5 Hun, 417.

Under the Code of Civil Procedure, it has been held by the Court of Appeals, in Elwood v. Roof, 82 N. Y. 428, that an appeal lies to the General Term from an order of the Special Term, directing judgment for plaintiff on account of the frivolousness of defendant’s' answer, before the entry of judgment dn pursuance thereof, but that in such a case the order of the General Term reversing the order of the Special Term is not appealable to the Court of Appeals, because it is discretionary with the General Term whether to pass upon the sufficiency of the answer on a motion for judgment, which is in substance a short demurrer, or to put the plaintiff to a regular demurrer. The Appellate Term of the Supreme Court sustains to the General Term of the City Court, generally speaking, the same relation which the Court of Appeals sustained to the General Term of the Supreme Court or now sustains to the Appellate Division of the Supreme Court, and consequently, if in the case at bar the appeal had been from the order only, we would feel bound to decline to review the action of the General Term of the City Court. In Emmens v. McMillan Co., 21 Misc. Rep. 638, it was expressly held by this court that a discretionary order of the General Term of the City Court is not reviewable here.

But the- defendant appealed to the General Term from the judgment and the order. Judgment having been entered, the appeal, as already shown, had to be from the judgment, and by including in the notice of appeal the order directing the judgment, the defendant under section 1301 of the Code had the right to bring the said order -up for review. Upon this combined appeal the question before the General Term was one of law and not one of discretion, and the determination of the General Term may be reviewed by this court. That, in a similar case brought in the Supreme Court, an appeals lies to the Court of Appeals, has been conceded in many reported cases, and in Cook v. Warren, 88 N. Y. 37, the power was exercised. In that case the judgment of the General Term affirming a judgment in favor of the plaintiff entered upon an order directing such judgment on the ground of the frivolousness of defendant’s demurrer to the complaint, was reversed by the Court of Appeals and the motion for judgment denied.

It, therefore, remains to be seen whether the question of lav? involved in the appeal was correctly disposed of by the General Term of the City Court.

On granting a motion for judgment on the ground of the frivolousness of a pleading, the pleading adjudged to be frivolous is not stricken out, but remains upon the record and becomes a part of the judgment-roll. The manner of dealing with sham and irrelevant answers is entirely different. They may be stricken out on motion upon such terms as the court deems just. But a judgment granted on the ground of the frivolousness of a pleading is rendered upon the pleading and not without it, and the pleading remains in the case. Briggs v. Bergen, 23 N. Y. 162. The appeal from such a judgment presents the question whether as matter of law the frivolousness of the pleading is apparent upon the face of the pleading. It may be deemed settled that to justify a decision that a pleading is frivolous, it must be so clearly without foundation that the defect appears upon mere inspection and without argument. Cook v. Warren, 88 N. Y. 37; Henriques v. Trowbridge, 27 App. Div. 22; Wait v. Getman, 32 id. 171; Manne v. Carlson, 49 id. 276; Merritt v. Gouley, 58 Hun, 375.

These authorities do not, however, help the defendant, because the frivolousness of the amended answer does appear upon mere inspection and a bare statement shows it. The complaint is in concise form for the recovery of the rent for the months of May, June, and July, 1901, under a written renewal lease by plaintiff to defendant, which rent by the terms of such lease had become due and payable, and it is averred that no part thereof has been paid to this plaintiff, or for his use, or to any person in his behalf, although payment thereof has been demanded, and that there is now justly due the plaintiff from the defendant, on account thereof, the sum of one hundred and twenty dollars, with interest, etc.

The amended answer contains no denial whatsoever and, therefore, under section 522 of the Code of Civil Procedure, each and every allegation "of the complaint stands admitted and must be taken as true. Moreover the said answer does not profess to set up a defense, set off, or counterclaim, but only a partial defense, and that consists of a long narration of occurrences and conclusions occupying in the printed record about four pages of printed matter,, by which the defendant seeks to demonstrate that he vacated the demised premises before the commencement of said three months, that on doing so, he made an arrangement with the plaintiff that each party should use his best efforts to procure another tenant, that the plaintiff violated said arrangement and that no other tenant was procured. At the same time the said answer affirmatively shows that part of the so-called: arrangement was that such sublease should be without prejudice to plaintiff’s rights and remedies under defendant’s lease, and that the plaintiff refused the defendant’s request for a release from the contract of lease. ' The said answer, taken for all it is worth, shows no surrender of the demised premises in law or in fact, nor a consideration to the plaintiff for the so-called arrangement, and contains nothing from which a surrender or consideration can be implied.

From this bare statement the frivolousness of the amended answer is clearly apparent without argument, and consequently the learned General Term erred in disturbing the judgment and order of the Special Term. The mere fact that the said answer commingles evidence with facts and conclusions and is so lengthy that it requires quite an effort to read it for the purpose of ascertaining and stating what it does and does not contain, constitutes no reason for denying to the plaintiff the relief to which he is clearly entitled and which he had obtained at Special Term.

The order of the General Term of the City Court should, on plaintiff’s appeal, be wholly reversed and the judgment and order4 of the Special Term affirmed, with costs, and in view of the conelusion, thus reached defendant’s appeal from part of said General Term order should he dismissed, without costs.

Truax and Gildersleeve, JJ., concur.

Order reversed on plaintiffs appeal and judgment and order of Special Term affirmed, with costs; defendant’s appeal from part of said General Term order dismissed, without costs.  