Opinion
March, 1910.
Defendants appeal from an order overruling the answer as frivolous and directing judgment for the plaintiff. The answer contains attempted denials, which are obviously bad and raise no issue. It also contains a counterclaim. It is settled that the sufficiency of a counterclaim may not be tested upon a motion to strike out an answer as frivolous. ( Cooper v. Howe, 16 Hun, 502.) The Code provides other means of testing such a pleading. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Clarke, McLaughlin, Laughlin and Dowling, JJ., concurred.