p. 348“6 $111t9ó8o Mew York, May 1st, 1857.
“ ‘Twelve months after date, we promise to pay to the order of Wm. McMurray, one hundred and eleven T9o8y dollars, at Mechanics’ Banking Association, value received.
(Signed,) McMurray & Tait.
(Indorsed,) Wm. McMurray.’
“ 2d. And for a further cause of action, that there is due to plaintiff from the defendants, the sum of one hundred and eleven dollars and ninety-eight cents, with interest thereon from May 4th, 1858, on a written instrument, of which the following is a copy, to wit:
“ ‘ $lllx9^. Mew York, May ls¡5, 1857.
“ ‘Twelve months after date, we promise to pay to the order of Wm. J. Kerr, one hundred and eleven dollars, at the Mechanics’ Banking Association, value received.
(Indorsed,) Wm. J. Kerr.’
“Whereupon the plaintiff demands judgment against the defendants for the sum of $223x9o6o-, with interest on the same from May 4th, 1858, besides the costs.”
The answer was in these words:
“The defendants have not, nor has either of them, any knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of the complaint in this action, or either of them of any such allegations.”
Mr. Justice Daly ordered judgment for the plaintiffs, on the demurrer, as frivolous. The defendants appealed.
Samuel F. Freeman, for the appellants.
I. The answer is good in form. The Code (§ 149) expressly authorizes a general denial of knowledge or information sufficient to form a belief. Such a denial is set up as complete and comprehensive as language can make it.II. The answer is a good and sufficient answer to the complaint in this action. Whatever may be the interpretation of this complaint, the answer fits it exactly. If it be held that the complaint virtually alleges all the separate facts which are
p. 349essential to plaintiff’s cause of action the answer denies, or takes issue upon each and every one of those separate allegations, whatever they may be. It may be that the defendants have denied knowledge or information as to their own signature, but they have, at the same time, denied knowledge or information as to the indorsement, delivery, and ownership of the notes in suit; and such a denial has always been allowed. And where a part of an answer is good and sufficient, the whole answer cannot be summarily set aside as frivolous. (See Morrow a. Cougan, 3 Abbotts’ Pr., 328.)G. Bainbridge Smith, for the respondent, cited Thorn a. N. Y. Central Mills, 10 How. Pr., 19 ; Code of Pro., § 162.
The answer in this case is sufficient in form. It contains a denial of any knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in the complaint, or any or either of them. The allegations in the complaint are, that there is a sum due on one note, set out, and then a further sum on another note, also set out. The complaint does not allege that the plaintiff holds notes drawn by the defendants, and indorsed by the payee, which have not been paid, and then demand judgment, but simply alleges that there is an amount due on each note. But, assuming that the complaint is sufficient, I think the answer of the defendants creates an issue, at least as to the indorsement by the payee, and is, therefore, not frivolous. The possession of the note at the trial would not, under the answer, be sufficient to enable the plaintiff to recover.
The judgment for these reasons should, I think, be reversed.
Hilton, J.—I think the answer puts at issue the allegation in the complaint, that the notes sued on were indorsed to the plaintiff.
Daly, F. J., was not present.
Judgment reversed.