1. A cause will not, on the ground that it has no merits, be advanced for argument; nor will it be dismissed on motion simply because the court may be of opinion that it has been brought here for delay only. 2. The court will not hesitate to exercise its power to adjudge damages where it finds that its jurisdiction has been invoked merely to gain time.
ERROR to the Supreme Court of the State of New York.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.
We cannot dismiss a case on motion simply because we may be of the opinion that it has been brought here for delay only. Both parties have the right to be heard on the merits; and one party cannot require the other to come to such a hearing upon a mere motion to dismiss. To dismiss under such circumstances would be to decide that the case had no merits. Neither can we advance a cause for argument for the reason that we may think it has no merits. Further argument may show the contrary.
We can adjudge damages, under sect. 1010 Rev. Stat. and rule 23, in all cases where it appears that a writ of error has been sued out merely for delay. This gives us the only power we have to prevent frivolous appeals, and writs of error; and we deem it not improper to say that this power will be exercised without hesitation in all cases where we find that our jurisdiction has been invoked merely to gain time.
Motion denied.