The plaintiff has mistaken his *27remedy. He should have either demurred, or moved to make the first defence set up in the answer, more definite and certain. The substance of this part of the answer, if well pleaded, would be a defence to some part of the plaintiffs’ claim. If the notes were given in payment of a claim arising upon a policy of insurance fraudulently procured, the plaintiff could not succeed. The question of consideration is always open between the original parties to a promissory note. The distinctions between a sham, irrelevant, and frivolous answer, are settled by many authorities, which will be found collected under sections 152 and 247 of the Code. (’Voorhies' Ed., 1857.) A sham answer is one that is false in fact; a pleading is irrelevant, which has no substantial relation to the controversy between the parties to the action; and a frivolous answer is one which, assuming its contents to be true, presents no defence to the action. An answer, however,'which is so framed that it does not set up a valid defence, but which states facts that may, by being properly averred, constitute a defence, will not be struck out as sham, irrelevant, or frivolous, but it may be demurred to. (Alfred a. Watkins, 1 Code R., N. S., 343.)
The answer in this action may be stated thus : As to $2500 of the plaintiffs’ claim, the plaintiffs are not entitled to a recovery, because they obtained a policy upon a vessel they knew to be unseaworthy, and did not disclose the fact; and as to the balance, it is for notes given in settlement of a claim arising upon a policy, and for a loss, represented by the plaintiffs to be a total loss, which was not ti*ue, but on the contrary the plaintiffs sold the vessel insured, and appropriated the proceeds without accounting. If these facts were well pleaded, it seems to me that they constitute a defence to the action. It is not an answer to this view that the defendants do not show an organization which gives power to insure. The plaintiffs have described them as an insurance company, and have alleged their incorporation. Hor is it an answer that the notes are a payment of the loss, for the reason that the defence, if good at all, is one of fraud on the part of the plaintiffs, and that defence is not precluded by the settlement.
The preliminary objection to this appeal is not well taken. The plaintiffs have admitted due service of the notice of the appeal, and are concluded. .
*28I think the order of the special term should be reversed.
Daly, F. J.I agree with Judge Brady that this answer should not have been stricken out as irrelevant and frivolous, but that the question of its insufficiency should have been raised by demurrer. • I shall not, therefore, discuss the question whether there is a sufficient averment of fraud contained in the answer, to release the defendants from the effects of an adjustment and settlement of the loss, by the giving of their promissory notes, or the other matters relied upon as a defence, as I have. already intimated my views upon the motion below, and it would not be proper again to consider and review the matter until the defendants have been heard upon the demurrer.
Order reversed, with $10 costs to the appellants, to abide the event.
Present, Daly, F. J., Brady and Hzlton, JJ.