Metzger v. Metropolitan Elevated Railway Co. , 50 N.Y. St. Rep. 744 ( 1893 )

PER CURIAM.

These actions were brought to recover damages awarded the plaintiffs in proceedings to acquire by condemnation certain easements for the use of the defendants. The same defense is interposed in each action, and the rule applicable to one is to all. It has been so long settled by repeated decisions in the court of appeals (Youngs v. Kent, 46 N. Y. 672; Strong v. Sproul, 53 N. Y. 497; Cook v. Warren, 88 N. Y. 39) and in this court (Barney v. King, 13 N. Y. Supp. 685) that a pleading should not be stricken out as frivolous unless it is so plainly so that neither argument nor illustration is required to demonstrate its frailty, as to render the further citation of authorities wholly unneccessary. This rule has become elementary. The learned counsel for the respondent cites early cases holding that on an appeal from a judgment entered on such an order it should be upheld if the court is of the opinion that the pleading stricken out would be held bad on a demurrer. The cases cited have, in effect, been overruled by the subsequent cases in the court of last resort and in this court, above cited, and in many others which might be referred to. It will not do to have one rule applied upon the hearing of a motion to strike out a pleading as frivolous, and another on an appeal from the judgment. On the original hearing the motion should not be granted if argument or illustration is necessary to demonstrate the fact that the pleading is frivolous, and on appeal the order or judgment will not be sustained if a long argument is necessary to show the frailty of the pleading. In support of these judgments the learned counsel for the respondents presents an argument of 15 pages, which seems to establish the fact that these cases fall within the role of practice which has so long prevailed. We express no opinion as to whether the answers are demurrable, but we think the question whether they are or not should have been presented by demurrers, and not by summary motions for judgment on the ground that they are frivolous. The judgment in each case should be reversed, with costs, and the motion in each denied, with $10 costs, with leave to the plaintiffs, on the payment of the costs, to interpose demurrers, if they shall be so advised. All concur.