18 N.Y. 315, People v. McCumber

Citation18 N.Y. 315
Party NameTHE PEOPLE v. MCCUMBER et al.
Case DateDecember 01, 1858
CourtNew York Court of Appeals

Page 315

18 N.Y. 315

THE PEOPLE

v.

MCCUMBER et al.

New York Court of Appeal

December 1, 1858

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COUNSEL

Amasa J. Parker, for the appellants.

Lyman Tremain, for the respondent.

STRONG, J.

This appeal brings up for review only the order made upon special motion, no other questions than those involved in the order having been raised or actually determined in the court below.

The order strikes out the several defenses in the answer--the first as sham and irrelevant, the second and third as frivolous--and directs that the plaintiffs have judgment for the amount claimed in the complaint.

The first defense consists of denials of knowledge or information sufficient to form a belief as to several matters alleged in the complaint, and of a single matter not alleged; and a qualified denial in direct terms of another allegation in the complaint.

Several of these denials relate to mere conclusions of law, not traversable and immaterial matter; and all the other denials are manifestly false. The falsity of every denial respecting a material allegation is made entirely clear by other parts of the answer and the affidavit of the auditor used for the motion; and no affidavit of the defendants was produced on the motion to explain or sustain the truth of the defense.

This defense, so far as it applies to anything material, is a sham defense beyond all question, if any defense simply controverting, in the form allowed by the Code, material statements in a complaint can be so; and so far as it relates to what is not issuable or immaterial, it is obviously irrelevant.

A defense is sham, in the legal meaning of that term, which is so clearly false in fact that it does not in reality involve

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any matter of substantial litigation. The chief characteristic of a sham defense is its undoubled falsity. Such a mere formal defense is sometimes designated as a false defense. The words "sham" and "false," applied to such a defense, signify the same thing. By a general rule of the Supreme Court, adopted in 1837, it was declared that "false and frivolous pleas will be struck out on motion, with costs. " (Rule 86.) This rule was continued down to the time of the enactment of the Code. It is embodied in the rules established by the court in 1847. (Rule 79.) The word "sham" imports precisely the same as the word "false" in the rule. Neither term necessarily includes the idea of an artful construction of the plea, or doubt as to the legal character of the defense, upon its face. The defense may be entirely clear in form, but nevertheless sham, for the sole reason that it is false. ( Brewster v. Bostwick, 6 Cow., 34, and cases there cited; Oakley v. Devoe, 12 Wend., 196; Broome County Bank v. Lewis, 18Wend., 565.)Irrelevancy in an answer, in analogy to impertinence in an answer in Chancery under our former judicial system, may consist in statements which are not material to the decision of the case; such as do not form or tender any material issue. ( Woods v. Morrell, 1 John. Ch. R., 103.) Matter in defense, to be pertinent and relevant, must relate to allegations of fact in the complaint essential to the cause of action.

But it is strenuously insisted...

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52 practice notes
  • 6 Misc.2d 188, Slud v. Guild Properties
    • United States
    • March 26, 1952
    ...and which is so demonstratively false as to leave no reasonable doubt in the mind of the court as to its falsify (People v. McCumber, 18 N.Y. 315; Santasiero v. Briggs, 278 A.D. 15, 21). That motion to strike is accordingly granted. In connection with the motion to dismiss for failure to st......
  • 40 Cal. 439, 2,249, Felch v. Beaudry
    • United States
    • California Supreme Court of California
    • January 1, 1871
    ...failed to file an amended answer. (Pr. Act, Secs. 50, 68; 32 Cal. (supra ); 34 Cal. (supra ); N.Y. Code, Sec. 152; People v. McCumber, 18 N.Y. 320.) Second --The practice is universal to give leave to amend afterdemurrer sustained. (Smith v. Yreka W. Co. 14 Cal. 201; Gallagher v. Delaney, 1......
  • 34 Cal. 153, Gay v. Winter
    • United States
    • California Supreme Court of California
    • October 1, 1867
    ...allegations of the complaint, we hold to be, so far, sham and irrelevant within the meaning of the statute. (The People v. McCumber , 18 N.Y. 315.) This course, however, was not adopted, and perhaps the Court did not err in Page 162 declining to entertain the very general and indefinite pro......
  • 157 So. 190 (Fla. 1934), Rhea v. Hackney
    • United States
    • Florida Supreme Court of Florida
    • October 22, 1934
    ...of the court, and the proper administration of justice. People v. McCumber, 27 Barb. (N. Y.) 632, affirmed in People v. McCumber, 18 N.Y. 315, 72 Am. Dec. 515; Coykendall v. Robinson, 39 N. J. Law, 98; Patrick v. McManus, 14 Colo. 65, 23 P. 90, 20 Am. St. Rep. 253; Goldstein v. Krause, 2 Id......
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52 cases
  • 6 Misc.2d 188, Slud v. Guild Properties
    • United States
    • March 26, 1952
    ...and which is so demonstratively false as to leave no reasonable doubt in the mind of the court as to its falsify (People v. McCumber, 18 N.Y. 315; Santasiero v. Briggs, 278 A.D. 15, 21). That motion to strike is accordingly granted. In connection with the motion to dismiss for failure to st......
  • 40 Cal. 439, 2,249, Felch v. Beaudry
    • United States
    • California Supreme Court of California
    • January 1, 1871
    ...failed to file an amended answer. (Pr. Act, Secs. 50, 68; 32 Cal. (supra ); 34 Cal. (supra ); N.Y. Code, Sec. 152; People v. McCumber, 18 N.Y. 320.) Second --The practice is universal to give leave to amend afterdemurrer sustained. (Smith v. Yreka W. Co. 14 Cal. 201; Gallagher v. Delaney, 1......
  • 34 Cal. 153, Gay v. Winter
    • United States
    • California Supreme Court of California
    • October 1, 1867
    ...allegations of the complaint, we hold to be, so far, sham and irrelevant within the meaning of the statute. (The People v. McCumber , 18 N.Y. 315.) This course, however, was not adopted, and perhaps the Court did not err in Page 162 declining to entertain the very general and indefinite pro......
  • 157 So. 190 (Fla. 1934), Rhea v. Hackney
    • United States
    • Florida Supreme Court of Florida
    • October 22, 1934
    ...of the court, and the proper administration of justice. People v. McCumber, 27 Barb. (N. Y.) 632, affirmed in People v. McCumber, 18 N.Y. 315, 72 Am. Dec. 515; Coykendall v. Robinson, 39 N. J. Law, 98; Patrick v. McManus, 14 Colo. 65, 23 P. 90, 20 Am. St. Rep. 253; Goldstein v. Krause, 2 Id......
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