Jurgens v. Wichmann — 124 A.D. 531

Majority

p. 531

William B. A. Jurgens, Respondent, v. Herman A. Wichmann, Appellant, Impleaded with John J. Schluter, Defendant.

Second Department,

February 28, 1908.

Headnote

Pleading — answer — defective denial of knowledge or information — bills and notes — notice of dishonor of check, when sufficient.

An answer which “ denies knowledge or information sufficient to form a belief as to the truth in any of the allegations ” in specified paragraphs of a complaint, is insufficient as a denial of those allegations and raises no issue thereon.

The provision of section 500 of the Code of Civil Procedure permitting issue on the allegations of a .complaint to be joined by a denial “of any knowledge or information thereof sufficient to form a belief" means that the defendant must deny that he has knowledge or information of such allegations sufficient to form a belief as to their truth. This artificial form of denial must be followed with substantial strictness in order to be good.

Notice of the dishonor of a bank check given by telegraph on the second day following the deposit of the check for collection and immediately after the depositor received notice of such dishonor is good, for under sections 174 and 175 of the Negotiable Instruments Law the bank had until the day following to give notice of the dishonor, and by virtue óf section 178 the depositor had until the day following notice to him within which to notify antecedent parties.'

p. 532

Appeal by the defendant, Hermann A. Wicliman, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff;

Franldin Taylor, for the appellant. . .

Joseph IT. Gazza/m, Jr., for the respondent. .

This is an action by the holder of a check on a bank against the maker and payee. The former did not answer. The latter, appeals. The payee endorsed the note to the plaintiff. The first point made is that there ivas no evidence that the check was presented 'for payment and payment refused. There was no issue-on that head.( It is alleged by the fifth subdivision of the complaint that the check was presented to the bank on which it was drawn and payment demanded; by the sixth that the bank refused payment; by the seventh that the maker had directed the bank to stop payment; and by the ninth that there is owing to.the plaintiff from the defendants the amount of the said note.- The first subdivision of the answer-purports to deny the allegations of these Subdivisions, of the complaint as follows : “ Denies knowledge or information sufficient to form a belief as to the truth ill any of .the allegations in paragraph V, VI,. VII and IX, of the complaint.” This is no denial. Section 500 of the Code of Civil Procedure permits issue to be joined on allegations of the complaint by a denial “ of any knowledge or information thereof sufficient to fdrm a belief”. This means that the defendant must deny that he has any 'knowledge or information thereof, i. e., of such allegations, sufficient to form a belief as to their truth. The so-called denial in this answer does not deny that the answering defendant has any knowledge or information, etc., nor does it deny that he has knowledge or information u thereof”, but only knowledge or information in general. This is too slovenly and loose. This artificial form of denial has to be followed with substantial strictness in order to be good (Rochkind v. Perlman, 123 App. Div. 808 ).' The point is also made that notice of dishonor was not given to the appellant in time. The evidence is that the plaintiff endorsed and deposited the check in his bank for collection on July 28th, and that he notified the appellant by

p. 533

telegraph on July 30th of its dishonor. The evidence is that this was done immediately after the plaintiff had received notice of such dishonor from liis bank. By sections ITT and 175 of the Negotiable Instruments Law the plaintiff’s bank had until the day following the dishonor to give him notice, which would be July 29th, and by section 178 the plaintiff had until the day following notice to him to give the appellant notice.

The judgment should be affirmed.

Woodward, Jenks and Hooker,- JJ., concurred; Rich, J., concurred in result.

Judgment of the Municipal Court affirmed, with costs.