Schmidt v. McCaffrey , 34 Misc. 693 ( 1901 )

Gaynor, J.

Section 538 of the Code of Civil Procedure is that “ A sham answer or a sham defence may he stricken out ”, etc. This distinguishes an “ answer ” and a “ defence ” as separate things in the terminology of pleading, whereas the term “ answer ” includes the term “ defence ”. An answer may consist of a denial or denials only, - or of a “ defence ” only, or of both (Code Civ. Pro. § 500). But a denial cannot be struck out as sham, i. e., false, but only a “ defence ” (Wayland v. Tysen, 45 N. Y. 281). This serves to illustrate the difference in terminology between a “ denial ” and a “ defence ”. The inexact and unscientific language of the Code ought to be that a “ defence” may be struck out as sham. There are no defences pleaded here, but only a general denial.

The motion is denied, with $10 costs.