¶1The Code establishes a very clear and decided distinction between sham and frivolous answers, and provides a totally different method of dealing with them. A sham answer is upon its face good, and sets up new matter, which is false; a frivolous answer controverts no material allegation in the complaint, and presents no tenable defence.
¶2In this case the answer is not false, or, rather, it cannot be treated as false, for it sets up no new matter, and if it could be treated as false, the plaintiff could not apply for judgment, but to have it struck out, under section 152 of the Code, upon such terms as the court may deem proper. If this answer can be considered frivolous, the application should be under section 247 of the Code, on a notice of five days, for judgment. The motion was on a notice of two days to have the answer struck out, as sham, frivolous and irrelevant, and for judgment. If the notice was on five days, and if the judge decided the answer to be frivolous, he might have given judgment under section 247, disregarding the words a sham” and “ irrelevant” in the notice. The order granted merely strikes out the answer as sham and frivolous, and gives no judgment. Under the notice, the application ought not to have been granted in any shape. The plaintiff’s only remedy is under section 247. Order reversed.
¶3Roosevelt, J., dissented.