# Barton v. Griffin > Appellate Division of the Supreme Court of the State of New York · January 11, 1899 · 55 N.Y.S. 477 URL: https://www.frixlaw.com/law-library/cases/7335345 ## Case - **Full name:** BARTON v. GRIFFIN - **Court:** Appellate Division of the Supreme Court of the State of New York - **Decided:** January 11, 1899 - **Citations:** 55 N.Y.S. 477 - **Precedential status:** Published - **Opinion:** Dissent by Putnam - **Judges:** Herrick, Putnam - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7335345 ## Opinion text PUTNAM, J. (dissenting). This action was brought to recover damages for the unlawful eviction of the plaintiff from the premises described in the complaint at the instance of the defendant, under a warrant issued by a justice of the peace acting without jurisdiction. The complaint alleged a wrongful intent on the part of the defendant; a wrongful use of the process issued by the justice; also certain facts as to the manner of the eviction, with a view of enhancing damages; and stated such damages at the sum of §600. In passing upon the question raised upon this appeal, it is not necessary to consider the second, third, and fourth parts of the answer; the first two of such parts setting up a counterclaim, and the fourth alleging good faith on the part of the defendant in obtaining the process set forth in the first defense. The first part of the answer avers that the plaintiff was in possession of the premises in question under a lease from Mary Peydon, dated February 11, 1893; that defendant afterwards obtained title to the landlord’s interest in said lease; that the possession of the plaintiff thereunder was duly terminated, in pursuance of a provision in the said lease, on the 1st day of March, 1897, and that after such termination the defendant instituted summary proceedings under the statute before a justice, and after a trial, which resulted in his favor, obtained a warrant to dispossess the plaintiff; and the answer avers “that the said warrant was delivered to one Herbert S. Hogan, a constable of said town of Moira, and at the request of said officer the defendant and other persons went to the said farm and premises with the said officer, and he and they quietly and gently removed a son of the plaintiff, together with the plaintiff’s effects, from the said premises, doing the said son and the said effects no harm or injury whatever; and the said acts of .the said officer, and those who were required by him to assist in placing this defendant in the possession of said premises, are the same acts of which the plaintiff complains in this action.” Leaving out of view, as suggested, the second, third, and fourth clauses of the answer, the fifth, which was stricken out by the court below, is as follows: "On information and belief, he denies each and every allegation set forth in said complaint, except as herein admitted, qualified, or ex- *482 plained.” I am unable to see that there is any difficulty in determining as to what is admitted, qualified, or denied in the first part of the answer. It admits that the plaintiff wqs in possession of tide premises at the time stated in the complaint, and was evicted therefrom by a warrant issued by a justice of the peace. It states facts showing that the defendant, at the time the warrant was issued, was legally entitled to the possession of said premises, and the legal proceedings instituted to obtain such possession. What the answer admits, qualifies, or explains is not difficult to determine. It is also plain what the fifth portion of the answer put in issue. It denied the allegation of the complaint that the justice who issued the warrant acted without jurisdiction; the wrongful intent of the defendant; the circumstances connected with the removal alleged in the complaint with a view of enhancing damages; and the amount of damages claimed in the complaint. It is apparent that, should the defendant go to trial with this fifth part of his answer stricken out, he would be in an embarrassing-situation. In the first case, I think that an erroneous practice was adopted in this case. Section 537 of the Code of Civil Procedure does not permit a frivolous answer to be stricken out. The remedy of a party injured by such an answer is to apply for judgment on a notice of five days, and a judgment can only be given in such a case where the whole answer is frivolous. An answer may be stricken out as redundant or irrelevant, but the order appealed from was not granted on that ground; and, again, it will not be seriously claimed that this answer is either irrelevant or redundant. So, an answer may be stricken out as sham, but this answer was not claimed to be such. Also it has been held that such a remedy only exists where the whole answer is sham, and does not apply where the pleading consists of a general denial. In my judgment, the plaintiff in this case was mistaken as to his remedy. If the answer interposed by the defendant was subject to objection, it was because the allegations and denials therein were indefinite and uncertain, and the plaintiff should have applied to the court for relief under the provisions of section 546 of the Code of Civil Procedure. As suggested, it is not at all difficult to understand what allegations of the complaint are admitted, qualified, or explained in the first clause of the answer, and hence what was denied in the fifth part thereof. Such an answer has always been held proper and authorized in the Third department (Calhoun v. Hallen; 25 Hun, 155 ; Tracy v. Baker, 38 Hun, 263 ); so, in the First department (Owens v. Hudnut’s Pharmacy, 20 Civ. Proc. R. 145 , 12 N. Y. Supp. 700 ); and in the court of appeals (Allis v. Leonard, 22 Alb. Law J. 28 ). What was denied in the fifth clause of the defendant’s answer in this case is as plain as the denial held to be sufficient in the case last cited. The case of Clark v. Dillon, 97 N. Y. 370 , does not attempt to overrule Calhoun v. Hallen, supra. In Griffin v. Railroad Co., 101 N. Y. 348, 354 , 4 N. E. 742 , it is said: “The denial in this answer of ‘each and every allegation of the complaint not hereinabove admitted or controverted’ is a good general denial. What has been before admitted and controverted was clearly specified, and hence there was no doubt or confusion as to the application of this general denial; and this answer is not, therefore, condemned by the decision in Clark v. Dillon, 97 N. Y. 370 .” *483 In Baylis v. Stimson, 110 N. Y. 621 , 17 N. E. 144 , although the answer there considered was condemned as an improper pleading, it was not determined to be frivolous. The effect of the decision in that case rather was that such answer was indefinite and uncertain. It is true that section 500 of the Code of Civil Procedure requires a general or specific denial of an answer. But a denial of each and every allegation of a complaint not before admitted, qualified, or explained has been held to be a general denial, under the provisions of said section. Griffin v. Railroad Co., supra. I think the order from which the appeal is taken should be reversed, and the motion of the plaintiff denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7335345. Public record. Not legal advice.