
    SUPREME COURT.
    Munn and others agt. Barnum.
    In the first judicial district it is a rule to give a preference, on the circuit calendar, to the causes in which there is reason to believe that the defence is put in for delay.
    
    Slight evidence of merits in a defence is sufficient to prevent the answer from being struck out, .on motion, as sham or frivolous—it will be sent to the circuit.
    A defendant cannot demur and answer to the same matter.
    
      
      New-York Special Term,
    
    
      Jan. 1855.
    Motion to strike out defendant’s answer as sham and frivolous. 'v
    Platt, Gerard & Buckley, for plaintiffs.
    
    Burrill, Davison & Burrill, for defendant.
   Mitchell, Justice.

There is some reason to suspect that the answer was not put in in good faith, and that what is stated as on information and belief, was never communicated to the defendant. He says he believed it from an examination of the books of the company. That examination might lead to a suspicion that the plaintiffs did not own the stock, but is very slight evidence of the fact. It is enough, however, to prevent his answer, sworn to by him, and now substantially reaffirmed by affidavit, from being treated as sham. (See 2 Cow. 637; Muir agt. Cartledge, 8 Barb. 79; Caswell agt. Bushell, 14 id. 395.).

After the decision in the last case, this court adopted, in this district, a rule to give a preference on the circuit calendar to causes in which there was reason to believe that the defence was put in for delay. The plaintiff may probably obtain relief in that way.

The answer sets up a custom as to the mode of transferring stock. It very probably can have no influence on the case; but that may be better settled at the circuit than on special motion.

The answer concludes by demurring to part of the relief sought. The defendant cannot demur and answer to the same matter: he must, unless he elect to waive his answer, strike out this demurrer. The evil of allowing it to remain is, that the plaintiff might feel bound to have the demurrer passed on before he could go to trial.

No costs are given to either party.  