Barrie v. Yorston

1 Citing case

  1. Vlasto v. Varelopoulos

    73 App. Div. 145 (N.Y. App. Div. 1902)   Cited 1 times

    By section 490 the pleader is authorized to state the grounds of his demurrer in the language specified in subdivision 8, above cited, and when so made it may not be disregarded. There is no defect of form in this demurrer, and as such form is specifically authorized by the Code it is at least a matter of doubt whether there is any power in the court to strike it out as frivolous. ( Wayland v. Tysen, 45 N.Y. 281; Barrie v. Yorston, 35 App. Div. 404.) Aside from this question, however, it is evident that the court was not authorized to strike out the pleading as frivolous. Judgment is never ordered on account of the frivolousness of a pleading unless its insufficiency is so clear that it appears from a mere statement without argument, and whenever it is necessary to make an examination of the pleading to determine whether the motion should be granted or not, it becomes improper to strike out the pleading for such reason.