note, payable to their own order, describing it, “ and thereupon indorsed and delivered the same to the plaintiffs.” After alleging non-payment, the plaintiffs further alleged that they were .the lawful owners and holders of the note. The amended answer interposed by the defendants was as follows :
“ That they deny that the defendants in this action, by their firm-name or otherwise, ever indorsed to the plaintiffs the promissory note mentioned and described in the said complaint.”
“ And they, further answering, deny that the defendants in this action ever delivered to the plaintiffs, or in any way transferred to them, the said promissory note.”
“ And they, further answering, say that they have no knowledge nor information sufficient to form a belief whether or not the said promissory note was ever delivered to the plaintiffs, or transferred to them in any way by any one.”
“ And they, further answering, say that they have no knowledge nor information sufficient to form a belief whether or not the plaintiffs are the lawful owners or holders of the said promissory note.”
The plaintiffs moved for judgment for frivolousness of the answer, and the motion being granted, the defendants appealed.
Wm. Henry Forman, for appellants.
James N. Platt, opposed.
The plaintiffs allege that the defendants indorsed and delivered to them the note in suit. The defendants deny that they indorsed and delivered it to the plaintiffs. The note is payable to their own order. They do not deny that they indorsed the note, nor do they set up any matter assailing the plaintiffs’ possession of the note. When a note is payable to the order of the maker, and indorsed by him, in legal effect it is indorsed to any person who may hold it; and the denial of the mere indorsement or delivery to the holder, is not the denial of a material averment. It may be assumed ■that the thing thus denied is not literally true, and yet the defendants would be liable. The mere possession of the note is sufficient to put the defendants to their defence, if any they