Opinion
November, 1892.
Davidson Chapman, for plaintiff (respondent).
Daniel D. Sherman, for defendant (appellant).
On a former appeal in this action, the General Term of this court pronounced the allegations of the answer, respecting the payment of plaintiff's alleged damages, sham; and directed that they be struck out, and for the facts appearing on the present appeal, reference may be had to the report of the former. Sutorius v. North, 13 N.Y.S. 557.
Subsequently, plaintiff applied at Special Term for judgment on the ground that the remaining allegations of the answer were frivolous and constituted no defense. This motion was granted and upon the order made, interlocutory judgment was entered, directing the assessment of plaintiff's damages by a reference for that purpose. From such order and judgment defendant has appealed.
Appellant's counsel contends that on the hearing of the motion, the court erroneously considered the facts set forth in an affidavit made by the plaintiff, which appears in the record. That this contention is erroneous, is apparent from the notice of motion and the order made and appealed from, neither of which alludes to any papers other than the summons, pleadings and the order striking out the allegations of the answer held to be sham.
Eliminating from the answer all such last mentioned allegations, there remains as matter of attempted defense only the allegation of the fact that defendant had paid the several judgments for the costs of the action which were awarded to the plaintiff herein, as defendant in the action wherein the order for his arrest was issued. That the costs of the action was not the costs which the undertaking on arrest, required by section 559 of the Code of Civil Procedure, is intended to secure, was decided by this court on the former appeal hereinbefore referred to, and again in Sperry v. Hellman, 13 N.Y.S. 899. Hence, their payment could not constitute a defense to an action on the undertaking and the answer was plainly frivolous. Strong v. Sproul, 53 N.Y. 497, 499.
The order and judgment appealed from should be affirmed with costs.
DALY, Ch. J., concurs.
Order and judgment affirmed.