Henry Hubber Co. v. McAllester

Decided December 15, 1892

City of New York Municipal Court · decided 1892-12-15

<p>On an appeal from an order striking out defendant’s answer as sham, the proofs on the part of plaintiff clearly showed that defendant never supposed he had any defense to the action, and that he practically acknowledged the debt in a letter written after suit was threatened, and promised to make no trouble, but confess the debt. The affidavit of defendant in opposition to the motion failed to point out any defense. Held, that the order was properly granted.</p>

Cited in Bouvier (1914)’s definition of “Frivolous”

Decided 1892-12-15

Ehrlich, Ch. J.

¶1The proofs on the part of the plaintiff clearly show that the defendant never supposed he had any defense to the action.

¶2He practically acknowledged the debt in a letter written after suit was threatened, and promised to make no trouble, but confess the debt.

¶3The defendant’s affidavit, in answer to the motion, fails to point out any defense.

¶4He ought, under the circumstances, to have disclosed something meritorious in answer to the motion for judgment.

¶5Though courts seldom grant motions to strike out sham defenses, the power exists (Code, § 538) and may be exercised where it is apparent that the object of the plea was merely to create delay, annoy the plaintiff or trifle with the court. Hadden v. Silk M. Co., 1 Daly, 388. While such power exists, it must be sparingly exercised; it was not abused in this instance, and the order appealed from must be affirmed, with costs.

¶6Newburger, J., concurs.

¶7Order affirmed.