
    Herman D. Harris and Solomon Schwartz, Composing the Firm of Harris & Schwartz, Appellants, v. Hamilton B. Combs, Respondent. 
    
    
      Bale —pleading —frivolous answer.
    
    Appeal by the plaintiffs from an order of the Supreme Court, bearing date the 9th day of May, 1908, and entered in the clerk's office of Nassau county on October 3, 1908, denying their motion for final judgment on the pleadings.
   Burr, J.:

This action was brought to recover the agreed price of one lady’s suit sold and delivered to the defendant. After the answer had been interposed a motion was made for judgment on the pleadings. (Code Civ. Proc. § 537.) Although the notice does not in express terms state that the ground of such motion is that the pleading is frivolous, that was its manifest purpose and intent. The motion should have been granted. The answer in this case contains neither a general nor specific denial of any material allegation of the complaint, nor any .statement of any new matter constituting a defense or counterclaim. To be sufficient an answer must contain either one or both. (Code Civ. Proc. § 500.) There is nothing in the answer to identify the suit therein referred to with that described in the complaint. It might havp referred to something entirely different. If the complaint and answer could be supposed to relate to the same subject-matter, the answer is fatally defective in pleading a breach of warranty either as a defense or a counterclaim. It fails to state what was the grade or material of the suit which the plaintiffs agreed to sell to the defendant, or in what respects the suit delivered varied therefrom. No facts or even conclusions respecting this are contained in the answer. At most it contains only an expression of opinion on the part of the defendant and his wife that the suit delivered was not of the grade or material agreed upon. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs of the motion and costs of the action. Woodward, Jenks, Rich and Hiller, JJ., concurred. Order reversed with ten dollars costs and disbursements, and motion for judgment granted,' with ten dollars costs of the motion, and costs of the action.  