(dissenting):
The complaint is for shirt waists sold and delivered between the 25th day of May and the 11th day of September, 1915, both inclusive, of the value and agreed price of $238.75. The first answer admits the corporate capacity of the plaintiff and the business and residence of the defendant. The second answer denies “ each and every other allegation contained in said complaint, except as hereinafter admitted, qualified or explained.” The third answer alleges that prior to the eleventh day of September defendant ordered of the plaintiff certain goods, wares and merchandise, consisting of a quantity of ladies’ shirt waists, and then sets up warranties or representations and a breach thereof. The second answer is manifestly neither a general nor a specific denial of any allegation of the complaint, and is bad pleading. (Barton v. Griffin, 36 App. Div. 572.)
We need not consider whether the real remedy of the plaintiff was to move to strike out this answer as frivolous under section 537 of the Code of Civil Procedure, or a motion to make it more definite and certain under section 546. If the allegation was indefinite and uncertain, and the indefiniteness was prejudicial to the plaintiff, or might be prejudicial to the plaintiff, he was entitled to some remedy. It is true that section 537, in the case of a frivolous pleading, contemplates a motion for judgment; but in the Barton case this court sustained an order striking out such an answer as frivolous.
The plaintiff may urge that it is not entirely clear from the answer what is admitted. If it is not evident that this answer can do him no harm, he is entitled to relief, as a defendant, by an improper pleading, cannot prejudice the plaintiff or put his rights in jeopardy. We have seen that the complaint alleges that during five months shirt waists of the value and agreed price of $238.75 were sold by the plaintiff to the defendant. There is nothing in the answer admitting this *490allegation except the bare statement that prior to September the defendant did buy of the plaintiff certain goods, wares and merchandise, consisting of a quantity of ladies’ shirt waists. This allegation is not as broad as the allegation of the complaint. It says certain "shirt waists”—not $238.75 worth. The plaintiff is not obliged to guess what the decision of the court would be when defendant contends that that statement in the answer is not an admission of all of the sales claimed. Technically, if two shirt waists were bought on a quantum meruit, the allegation of the answer would be justified. It cannot be told from the answer and the complaint how many of the waists were bought or what the value and agreed price was. Therefore, the denial is prejudicial to the plaintiff. The motion papers ask to have this answer stricken out “ and for such other and further relief, or both, in the premises as may be just.” I favor a modification of the order so as to allow the defendant to amend that part of the answer within ten days, and if he does not amend it that it be stricken from the pleading, and as so modified the order should be affirmed, with costs.
Order reversed, with ten dollars costs and disbursements, and motion for judgment granted, with ten dollars costs.