a. Laws 1866, p. 2070, § 10. Laws 1867, p. 1606, § 6, provide that no judgment in actions on contract shall be entered against the Mayor, &c., of New York, except upon proof in open court that the amount to be recovered remains unexpended in the city treasury to the credit of the appropriation to the specific object upon which the claim in suit is founded (see Tribune Asso. v. Mayor of N. Y. 48 Barb. 240; and see laws 1865, p. 1335, § 4, 5).

§ 247. Judgment on frivolous demurrer, answer, or reply. If a demurrer, answer or reply, be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.

b. What is a frivolous pleading.—A frivolous answer denies no material allegation of the complaint, and sets up no defense (Hull v. Smith, 8 How. 150; Kelly v. Burnett, 16 id. 135). It is an answer which if true does not contain any defense, and the insufficiency of which is so glaring as to appear upon a bare inspection without argument (Nichols v. Jones, 6 How. 358; Sixpenny Savings Bank v. Sloan, 12 id. 544; Lefferts v. Snediker, 1 Abb. 41; Leach v. Boynton, 3 id. 3; Hecker v. Mitchell, 5 id. 455; Brown v. Jennison, 3 Sand. 732; Struver v. Ocean Ins. Co. 2 Hilton, 475; Smith v. Mead, 14 Abb. 262). It is not simply an answer bad upon its face, but one which in the opinion of the court, has been certainly interposed in bad faith for the mere purpose of delay (Hull v. Smith, 8 How. 150). "It is not the motive with which an answer is put in, or its truth or falsity, that is the test, on a motion for judgment on the ground of its frivolousness. If it is a good defense on its face the motion must be denied" (Hecker v. Mitchell, 5 Abb. 455). "No pleading can be called frivolous which traverses a material allegation in the complaint, or sets up matter which if true constitutes a defense to the action" (id. Richter v. McMurray, 15 Abb. 346; Davis v. Potter, 4 How. 155; Temple v. Murray, 6 How. 331; Metropolitan Bank v. Lord, 1 Abb. 185; 4 Duer, 630; Caswell v. Bushnell, 14 Barb. 393); whether or not the pleading is verified makes no difference (Reed v. Latson, 15 Barb. 17). Although a verification may possibly save an answer from being struck out as false, it has no such potency to protect it from being adjudged frivolous (Thorn v. N. Y. Central Mills, 10 How 25; Sherman v. N. Y. Central Mills, 1 Abb. 187). A pleading will be held to be frivolous where there is a decision in point adverse to its sufficiency (B'k of Wilmington v. Barnes, 4 Abb. 226; The People v. Mc Cumber, 15 How. 193; Strong v. Stevens, 4 Duer, 688; Collins v. Suan, 7 Rob. 624; Langdale v. McLean, 10 Jurist, 642; Withers v. McLean, 6 Lond. Law Times, 352). But the court will not hold a pleading frivolous and give judgment on it, "unless it clearly appears to be taken for the purpose of delay, or unless the grounds stated in it are clearly untenable" (Sixpenny Savings Bank v. Sloan, 2 Abb. 414; 12 How. 544; and see Munn v. Barnum, id. 563; Temple v. Murray, 6. How. 331; Rae v. Wash. Mut. Ins. Co. 6 How. 21; Niblo v. Harrison, 7 Abb. 447, n).

c. Answers adjudged to be frivolous.-An answer in an action of tort, e. g. assault which merely states matter controverting the degree of aggravation by which it was characterized (Lane v. Gilbert, 9 How. 150; Gilbert v. Round, 14 id. 46); an answer denying that plaintiff is the lawful owner of the note in suit (Catlin v. Gunter, 1 Duer, 253; Fleuret v. Roget, 5 Sand. 646; Higgings v. Rockwell, 2 Duer, 653; De Santes v. Searle, 11 How. 477; Fosdick v. Groff, 22 How. 158; Chadwick v. Booth, 13 Abb. 249; 22 How. 23; Smith v. Mead, 14 Abb. 265; Plant v. Schuyler, 7 Rob. 271); an answer stating that the note was made for the accomodation of the payee without more (Andrews v. Storms, 5 Sand. 609; Pettigrew v. Chave, 2 Hilton, 546).

An answer which denies knowledge or information sufficient to form a belief that the defendant (a corporation) made its promissory note, as it is set out in the complaint (Sherman v. N. Y. Central Mills, 1 Abb. 191; 10 How. 20; overruled, see 7 Bosw. 675); an answer that the note was not presented for payment at the time it became due, and at the place it became payable (Tompkins v. Acer, 10 How. 309); an answer by a married woman that the mortgage in suit was not acknowledged by her on a separate examination (Cramer V. Comstock, 11 How. 486); an answer setting up a levy under a foreign attachment (Hecker v. Mitchell, 5 Abb. 454); an answer denying indorsement to the plaintiff (Kemlah v. Saltus, 6 Abb. 226; 1 Hilton, 558; see Duncan v. Lawrence 6 Abb. 304; 3 Bosw. 103). An answer stating only such facts, as under the former system, if set out in a special plea, would have made the latter bad on a general demurrer, according to decisions determining the precise question (Strong v. Stevens, 4 Duer, 668). An answer by the payee to a complaint in an action on a promissory note against the maker and payee, that the payee indorsed the note for the accomodation of the maker and that fact was known to plaintiff when he received the note (Pettigrew v. Chave, 2 Hilton, 546; Andrews v. Storms, 5 Sand. 609). An answer that the defendant at the time of the commencement of the action was and ever since has been and still is Envoy Extraordinary and Minister Plenipotentiary of the United States of America to Brazil (Mechanics' Bank v Webb, 21 How. 450). An answer which merely denies the allegation of indebtedness set up in the complaint (Fosdick v. Groff, 22 How. 158). An answer in an action on a promissory note which sets up a parol agreement between the parties without consideration inconsistent with the tenor of the note, is frivolous (Elizabethport Manuf. Co. v. Campbell, 13 Abb. 87; see also Plant v. Schuyler, 4 Abb. N. S. 146; Bailey v. Lane, 13 Abb, 354); and where the complaint alleged that plaintiff as agent of A. sold and delivered certain goods to defendant and that defendant promised plaintiff to pay for said goods, an answer, setting up that said goods belonged to A. and not to plaintiff, and that A. and not plaintiff sold them to defendant, but which did not deny either the delivery by plaintiff nor plaintiff's agency nor the promise to pay plaintiff, was held to be frivolous (Reilly v. Cook, 13 Abb. 255; 22 How. 93). To a complaint against the sureties on an undertaking on appeal, an answer that the appellant owned real property, and that the execution was returned by the sheriff before the expiration of sixty days, at the respondent's request and without any attempt to collect the judgment out of such real estate, is frivolous (Wood v. Derrikson, 1 Hilton, 410).

a. Answers adjudged not to be frivolous.—Answer in an action against a married woman to charge her separate estate, that she has no separate estate (Aitken v. Clark, 15 Abb. 319). An answer which denies knowledge or information sufficient to form a belief as to all the material allegations of the complaint (Richter v. McMurray, 15 Abb. 346). An answer "The defendant says he denies each allegation" (Chapman v. Chapman, 34 How. 281). An answer by an endorsee of a note where the complaint alleges a transfer to the plaintiff and possession of the note denying the transfer only without denying that the plaintiff had possession of the note (Chadwick v. Booth, 13 Abb. 249; 22 How. 23; and see Metropolitan Bank v. Lord, 1 Abb. 185). An answer which did not constitute a defense, but which stated facts that might, by being properly alleged, constitute a defense (Alfred v. Watkins, 1 Code Rep. N. S. 343; Struver v. Ocean Ins. Co. 9 Abb. 23; and see Nat. B'k of Metro. v. Orcutt, 48 Barb. 256; Wood v. Mayor of N. Y. 3 Abb. N. S. 467). An answer that prior to the commencement of the action the plaintiff sold and delivered the cause of action to A. who is still the holder and owner of it (Smith v. Mead, 14 Abb. 262). And where the complaint alleged that the plaintiff was the owner and holder of the note in suit, the court refused to treat as frivolous an answer which denied that the plaintiff was owner and holder, and alleged that one V. G. was the real owner and holder of said note and the real party in interest (Tamisier v. Cassard, 17 Abb. 187; and see Arrangois v. Frazer, 2 Hilton, 244). Where plaintiff sued in a representative

capacity, and alleged in his complaint in general terms that defendant was indebted to him for, &c., an answer denying any knowledge or information sufficient to form a belief whether he (defendant) was indebted to plaintiff, was held not to be frivolous (Morrow v. Gougan, 3 Abb. 328). And where the complaint on a promissory note in an action against the maker and payee in order to show title in the plaintiff, averred an indorsement and delivery to plaintiff, and that plaintiff was the holder, an answer which denied the delivery to the plaintiff and alleged a delivery to a third person, named, was held not to be frivolous (Metropolitan Bank v. Lord, 1 Abb. 185).

a. Frivolous demurrer.—Where in an action by a corporation the complaint averred that the plaintiffs were a corporation duly incorporated by the laws of the State of New Jersey, with power to sue and be sued, and did business in the State of New York, held that a demurrer on the ground that it appeared on the face of the complaint that plaintiffs had not legal capacity to sue was frivolous (Elizabethport Manufacturing Company v. Campbell, 13 Abb. 86).

b. Motion.—The application under this section is a motion (Roberts v. Clark, 10 How. 415; Gould v. Carpenter, 7 How. 97; Marquisee v. Brigham, 12 id. 399; Butchers' Bank v. Jackson, 22 How. 470). It is a "summary demurrer," and the opposite party may, after the notice, if the time to amend has not expired, serve an amended pleading, and such pleading served before the hearing of the motion will be an answer to it (Burrall v. Moore, 5 Duer, 654 ; Currie v. Baldwin, 4 Sand. 690; see ante in note to § 172). The motion must be on a notice of five days; in every case, it cannot be made on an order to show cause returnable in two days (Lefferts v. Snediker, 1 Abb. 41). There is no time limited within which it is to be made (Darrow v. Miller, 5 How. 247). The opposite party does not waive his right to move by obtaining time to answer (Cutts v. Surridge, 16 Law J. 193 Q. B.; 11 Jur. 585; 4 D. & L. 642; Norton v. McIntosh, 7 Dowl. 530); nor by answering the frivolous pleading (Stokes v. Hagar, 1 Code R. 84). The notice of motion must ask either for "judgment" or "relief;" where a notice of motion, after asking for an order to strike out an answer as frivolous, concluded by asking for such other "order," &c., it was held, that under such a notice relief could not be given (Rae v. Washington Mutual Insurance Co. 1 Code Rep. N. S. 185; Darrow v. Miller, 5 How. 247).

c. A plaintiff may, in a proper case, ask in one motion for judgment under this section and to have irrelevant and redundant matter struck out, and indefinite and uncertain allegations amended (The People v. McCumber, 18 N. Y. 315). And where the notice of motion is for judgment on the answer, containing several defenses as frivolous, or for an order striking out some or all of the defenses as sham and irrelevant, it need not necessarily specify which defenses are claimed to be frivolous, and which sham or irrelevant (Bailey v. Lane, 13 Abb. 354).

d. On motion for judgment on an answer as frivolous, it is not competent to the defendant to attack the complaint, as not stating a cause of action (Corn Exchange B'k v. W'ern Transp. Co. 15 Abb. 319 note).

e. The motion is made on the copy pleading served, and no affidavit is necessary (Stokes v. Hagar, 1 Code R. 84; Howorth v. Hubbersty, 3 Dowl. Pr. Cas. 455). The judgment must be granted or refused on what appears upon the pleadings alone, and an affidavit, if served, could not be taken into account in deciding this question (Caswell v. Bushnell, 14 Barb. 393). By this it is merely intended that no affidavit need be served with the motion papers; for if the defendant do not appear to oppose the motion, the plaintiff must give proof of the reception of the answer and of the service of the notice of motion (Darrow v. Miller, 5 How. 247).

f. Where an answer contained two defenses, and plaintiff moved for judgment for frivolousness of answer, and one defense was held good and the other frivolous,-held that the latter defense might be stricken out under the notice that plaintiff would ask other and further relief, &c. (Hecker v. Mitchel, 5 Abb.

a. A judge at chambers has power to make an absolute or conditional order for judgment, precisely as at special term. Therefore, where it appears that the answer is put in, in good faith, and merits are properly sworn to, an amended answer may be allowed upon terms (Witherspoon v. Van Doler, 15 How. 266; and see Appleby v. Elkins, 2 Sand. 673; B'k of Lowville v. Edwards, 11 How. 218; Shearman v. N. Y. Central Mills, 1 Abb. 190; Fales v. Hicks, 12 How. 155; Fleuret v. Roget, 5 Sand. 646; Brown v. Ward, 3 Duer, 660; Marquisee v. Brigham, 12 How. 399; Witherhead v. Allen, 28 Barb. 661).

b. A frivolous pleading is not struck out (Briggs v. Bergen, 23 N. Y. 162). It should be inserted in the judgment-roll (id)

c. Decision on motion.-If judgment is ordered for the plaintiff on a frivolous answer or demurrer, and there is no other issue, the plaintiff takes judgment in same manner as though no answer or demurrer had been served (King v. Stafford, 5 How. 30; Hoffman v. Grove, 18 Abb. 14, 142; Aymer v. Chase, 1 Code Rep. N. S. 141; Saltus v. Kip, 2 Abb. 332; 12 How. 342; 5 Duer, 646); the defendant is entitled to notice of the application for judgment (id.)

d. The decision on a motion for judgment on the ground of frivolousness of a demurrer or answer, is a judgment on an issue of law and not an order from which an appeal can be taken (Witherhead v. Allen, 28 Barb. 661; King v. Stafford, 5 How. 30; Roberts v. Morrison, 7 How. 396; Bruce v. Pinkney, 8 How. 397; Lewis v. Acker, 8 How. 414; Bauman v. N. Y. Cent. R. R. Co. 10 How. 218; Harris v. Hammond, 18 How. 123; Lee v. Ainslee, 1 Hilton, 277; see note to 252 post). If the order direct judgment for more than the plaintiff is entitled to, it should be corrected on motion, not by appeal (id.) The denial of a motion for judgment on an answer as frivolous, does not prevent a motion to strike out the answer as sham (Kreetz v. Frost, 5 Abb. N. S. 277).

e. Costs. Where an application is made under this section and judgment is ordered with costs those costs must be inserted in and be collected as part of the judgment (Wesley v. Bennet, 6 Abb. 12).

f. On denying an application for judgment under this section, only the costs of a motion can be allowed (Butchers' B'k v. Jacobson, 22 How. 470); if the application is granted the successful party is entitled to a trial fee (Pratt v. Allen, 19 How. 450; Bell v. Noah, 24 How. 478; Lawrence v. Davis, 7 How. 354; Roberts v. Morrison, 7 How. 396).

9. Appeals.-To review a decision denying a motion for judgment on answer as frivolous the order is to be appealed from. To review a decision granting judgment on an answer as frivolous, the appeal should not be from the order for judgment, but from the judgment (Joannes v. Day, 3 Rob. 650); appeals from the order for judgment have been allowed and on appeal from an order rendering judgment on a demurrer as frivolous, the order will not be reversed unless the court are of opinion that the demurrer would be sustained on argument (Wesley v. Bennett, 5 Abb. 498; see Manning v. Tyler, 21 N. Y. 570; and 28 Barb. 668; 2 Abb. 327; 6 Duer, 688; Laverty v. Griswold, 12 N. Y. Leg. Obs. 316). And on an appeal from an order pronouncing an answer frivolous, if the answer does not establish a good defense the general term should sustain the order, although it may not regard the answer as frivolous (Martin v. Kanouse, 2 Abb. 328; East River B'k v. Rogers, 7 Bosw. 494).

h. On appeal from a judgment for plaintiff on account of the frivolousness of a demurrer to the complaint, the frivolousness is the only question that can be reviewed (Witherhead v. Allen, 28 Barb. 661).

i. An appeal from a judgment for the plaintiff on account of the frivolousness of the demurrer to the complaint, is not entitled to any preference on the calender (Wilder v. Lane, 34 Barb. 54).

251.

On issues of both law and fact, the issue of law to be first tried.

252. Trial defined.

253. Issues, how tried.

254. Issues triable by the court.

255. Issues, where to be tried.

256.

257.

Either party may give notice of trial. Note of issue.
Stenographer.

Order of disposing of issues on the calendar.

§ 248. The different kinds of issues.

Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds :

1. Of law; and

2. Of fact.

$ 249. Issue of law.

An issue of law arises,

1. Upon a demurrer to the complaint, answer, or reply, or to some part thereof.

$250. (Am'd 1849.) Issue of fact.

An issue of fact arises,

1. Upon a material allegation in the complaint controverted by the answer; or,

or,

2. Upon new matter in the answer controverted by the reply;

3. Upon new matter in the reply, except an issue of law is joined thereon.

§ 251. Issues of law and fact.

Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried, unless the court otherwise direct.

a. On demurring to one of several defenses in an answer, the plaintiff may