On appeal from the Essex County Circuit Court.
For the defendant-appellant, Bilder & Bilder.
For the plaintiffs-respondents, Meyer M. Semel.
The opinion of the court was delivered by
BROGAN, J. This case presents an appeal from an order of the Essex County Circuit Court striking out the answer of the defendant. The facts are as follows:
The plaintiffs sued Sarah Moss and Sigmund Moss for injuries arising out of an automobile accident and recovered a judgment against those defendants. A rule to show cause was applied for, allowed, argued and made absolute, on the question of damages only. A new trial as to damages only resulted in an increased verdict. Execution was issued against those defendants and returned unsatisfied. Plaintiffs
unable to have their judgment satisfied then brought suit against the Independent Bonding and Casualty Insurance Company, the insurer of Sarah and Sigmund Moss.
In one of the affidavits filed on the motion to strike out, it is alleged that the policy of insurance was issued to Sarah Moss only and not to Sigmund Moss, but that, even if it be true, is immaterial.
Upon answer being filed in the court below by the Independent Bonding and Casualty Insurance Company, motion was made to strike out certain paragraphs of the answer as "sham, frivolous and untrue" and to strike out the separate defenses of the answer because "the same are frivolous." An order was entered, striking out the answer as "sham and/or frivolous."
It is possible of course for an answer to be both sham and frivolous. A sham answer is one that is false in fact and which must be shown to be so by competent proof before it will be stricken out. A frivolous answer is one that may be in fact true but constitutes no defense to the charge. See In re Beam, 93 N.J. Eq. 593; Fidelity Mutual Life Insurance Co. v. Wilkes-Barre and Hazelton Railroad Co., 98 N.J.L. 507; Milberg v. Keuthe, 98 Id. 779.
Many grounds of appeal are set forth in the state of case and those that have not been expressly abandoned are grouped under two headings; that the judgment is contrary to law; that attacking the separate defenses as frivolous admitted their truth in fact and if true the defendant should have been permitted to defend; that the defendant's proof was sufficient to entitle it to defend; that the answer is not sham or frivolous and that the evidence below did not justify the court in striking out the answer.
The second point made is that the affidavit in support of the plaintiff's motion to strike out the answer and for ...