Corbett v. Eno — 13 Abb. Pr. 65

Majority

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CORBETT a. ENO.

Supreme Court, First District;

Special Term, October, 1861.

Headnote

Sham Answer.—Affidavits- on Motion to strike out.

An answer containing a general denial of a material allegation in the complaint may be stricken out as sham, on proof of its falsity, and that it is not pleaded in good faith.

Where the matters alleged in defence are stated on information and belief, and a motion is made to strike ont the defences as sham, upon affidavits, made by those who must necessarily be possessed of the requisite knowledge, which show the matters to be false, it is incumbent on the defendant to show the sources of his information, and that there is a possibility of his allegations being true.

Motion to strike out answer as sham, irrelevant, and frivolous.

The facts are sufficiently stated in the opinion.

Henry Bennett, for the plaintiff.

—I. The possession of a bill or note is presumptive evidence of title, and this whatever value was paid for it, and whether received before or after maturity. ( 5 Sandf., 52 , 646 ; 7 Paige, 615 ; 1 Sandf., 37 , 40 ; 3 Johns., Ch., 5 , 259.) But it is clearly shown that the plaintiff is owner of the note in suit for value, and that Robert H. Corbett is not, and never was; hence, the answer is clearly sham, and judgment should be ordered for plaintiff. ( 12 How. Pr., 313 ; 4 Abbotts’ Pr., 226 ; 17 Barb., 530 .)

EE. The court is in the constant habit of striking out such a

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denial as irrelevant and frivolous. ( 1 Duer, 265 ; 15 How. Pr., 266 ; 9 Ib., 215-217.)

’ IH. The essential element of a sham answer is its falsity. ( 6 How. Pr., 257 ; 3 Abbotts’ Pr., 1.) Here a loose statement, upon information and belief, is met by the affidavits of witnesses who know the facts sworn to.

Henry C. Pratt, for the defendants.

—I. The answer is not sham. 1. It is duly verified. 2. It denies several material allegations, to wit: the making and indorsing the note by the four defendants; the transfer of the note to plaintiff; the ownership of plaintiff; the alleged acts of the defendants, by which they all four became liable. 3. The only matter averred is as to the real ownership of the note, and connected with the denial of ownership in plaintiff. Such is not, properly, new matter; it goes only to make the denial of plaintiff’s statement of ownership more complete.

II. The answer is not irrelevant. 1. A denial of a material allegation cannot be irrelevant. 2. Ho new matter is set up, 3. If the averment as to who owns the note is new matter, still it is not such as “ is palpably no defence, either total or partial, nor a counter-claim.” (Kurtz a. McGuire, 5 Duer, 660 .)

III. The answer is not frivolous. 1. It traverses material allegations in the complaint. 2. It sets up matter as to the ownership of the note and the “ real party in interest,” which, if true, constitute a defence to the action.

—The complaint in this action is on a promissory note alleged to be made by a firm composed of the four defendants, three of them being general partners and the fourth a special partner. The general partners answer. The only averments in the answer which raise any issue are: “ They deny, on information, that the note mentioned in the complaint was at any time, for value, "transferred to plaintiff, and deny that plaintiff is the holder and owner of the note; and to the contrary thereof, they aver that such note is, and at the commencement ' of this action was, lawfully owned by Orlando M. Bogert and Robert H. Corbett; and that they are, or one of them is, the real party in interest.”

Motion is made to strike out the answer as sham.

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The first question that arises is, whether an answer containing a general denial of a material allegation in the complaint can be stricken out as sham. The Court of Appeals, in The People a. McComber ( 18 N. Y., 315 ), have decided, that it can be, and I am not aware that that court has either reversed or modified its decision made in that case. It is consequently of binding authority. The next question is, are these averments false? The plaintiff moves, on the affidavits of Orlando M. Bogert and Robert H. Corbett (who are alleged, by the answer, to be the owners of the note and the real parties in interest), and they both swear that they never, at any time, either separately or jointly, owned said note, in part or whole, and that they have no interest in the action, or the prosecution, or the result thereof ; and Cooper E. Corbett swears, of his own knowledge, that plaintiff is the lawful owner and holder for value. To meet these affidavits, the three answering defendants have made an affidavit, wherein they swear simply that the denials in the answer, and the averments of the ownership of the note (which denial and averments are above extracted), are made on information and belief; and that they verily believe each and every such denial and averment to be true.. Averse as I am to striking out answers as sham, still I think this motion should be granted. When the matters alleged in defence are stated on information and belief, arid a motion is made to strike out the defences as sham, upon affidavits made by those who must necessarily be possessed of the requisite knowledge showing the matters to be false, it is incumbent on the defendant, in his answering affidavit, to show at least the sources of his information, and to show that there may at least be a bare possibility of his allegations being true. The court cannot assume that there is any such possibility, when parties having the requisite means of positive knowledge swear positively to a fact, and such oath is only met by a party swearing generally that he is informed differently.

. Motion granted, with $10 costs.