The motion to strike defendant's answer as frivolous is equivalent, under our present practice, to a general demurrer at common law, and deals with matters of substance only. Savage v. Public Service Railway Company, Err. & App.1921, 95 N.J.L. 432, 113 A. 252; Blum v. Jersey City Lumber Company, Err. & App.1934, 112 N.J.L. 65-67, 169 A. 809; County of Passaic v. Manly, 1936, 186 A. 33, 14 N.J. Misc. 509, 513; Campbell v. Pure Oil Company, 1937, 194 A. 873, 15 N.J.Misc. 723. Upon a demurrer, it is the well-settled rule that judgment will be given against the party whose pleading is first defective in substance.
Such affidavit is "required in order to set in motion a `course of pleading' in the true sense of the word." Blum v. Jersey City Lumber Co., 112 N.J.L. 65. The rationale of this procedure "is to prevent the defendant from delaying judgment by recourse to pleadings or proceedings incidental thereto, unless the situation is such that he, or his agent or attorney, may truthfully swear to a belief in the existence of a just and legal defense to the action on the merits, and unless an affidavit of that content be speedily filed." Morris Plan Co. v. Lorber, 11 N.J. Mis. R. 67. It has its genesis in statutes designed to preclude dilatory pleas and to speed the day of judgment where the defendant, intent on making defense, did not introduce an affidavit made by him, or his agent or attorney, solemnly affirming the affiant's belief in the existence of a meritorious defense.
Such a motion under modern practice (Supreme Court Rule 40) has been substituted for and is tantamount to the general demurrer at common law. Savage v. Public Service Railway Co., 95 N.J.L. 432, 113 A. 252; Lehigh Valley R. R. Co. v. United Lead Co., 102 N.J.L. 545, 133 A. 290; Lully v. National Surety Co., 106 N.J.L. 81, 148 A. 762; Blum v. Jersey City Lumber Co., 112 N.J.L. 65, 169 A. 809. Positively, in the consideration of a motion of this nature all the facts adequately alleged must be accepted as true.