Gostorfs v. Taaffe, McCahill & Co.

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

The question in this case turns upon the construction of that portion of the fiftieth section of the Practice Act relating to sham answers and defenses. The suit was brought upon a promissory note for $10,400, and the only defense set up in the answer was a plea of payment. The Court, on the motion of the plaintiff, based upon affidavits showing the falsity of this plea, and the bad faith of the defendants in pleading it, ordered the answer to be stricken out. The pleadings are not verified, and no issue was taken upon the matters set forth in the affidavits. It is claimed that the order striking out the answer was erroneous, but we think the defendants have no right to complain. The statute provides that sham answers and defenses may be stricken out on motion, and such was undoubtedly the character of the answer in this case. The affidavits show, and the defendants virtually admit, that it was not only untrue, but put in for the sole purpose of delay. On its face it constituted a perfect defense, but it was false in fact, and was interposed in bad faith. This is precisely the kind of an answer to which we under[388]stand the statute to refer. “ A sham answer,” said this Court, in Piercy v. Sabin (10 Cal. 22) “ is one good in form but false in fact, and not pleaded in good faith.” The same definition substantially was given by the Court of Appeals of New York in the case of The People v. McCumber, (18 N. Y. 315). It was suggested, however, that the power to strike out should be carefully exercised, and not extended beyond its just limits. “ It is a power,” said the Court, “ simply to inquire whether there is in fact any question to be tried, and if there is not, but the defense is a plain fiction, to strike out the fictitious defense. Where a defendant, on a motion to strike out his defense as sham, supports it by an affidavit stating specially its grounds, he cannot, as a general rule, be deprived of a trial in the ordinary mode—a case for striking out does not exist.” Whether the statute applies to any but affirmative defenses, it is unnecessary to determine; but there is no doubt that where affirmative matter is falsely pleaded for the purpose of delay, it should be stricken out. We regard the averment of such matter as tendering no issue, and it would simply be trifling with justice to require the adverse party to submit to a trial. If the defense be bona fide, the affidavit of the defendant to that effect will be a sufficient answer to any attempt to strike it out.

Judgment affirmed.