Majority
Headnote
A complaint alleged that the plaintiffs performed work, labor and services for and at the request of the defendants, their agents and servants, in printing and advertising for them in a newspaper named. The defendants, hy their answer, denied that they requested or employed the plaintiffs to print or publish the notices, &o., and set up other matters as an answer and as a further and separate defence. Held, that the denial struck at the very foundation of the plaintiffs’ case, and could not be stricken out as frivolous; as it created an issue which called for investigation, and the affirmative of which it was incumbent on the plaintiffs to establish.The plaintiffs alleged that they performed work, labor and services for and at the request of the defendants, their agents and servants, in printing and advertising for them in a newspaper called “The Stockholder.” The defendants, by the first paragraph of their answer, deny that they have requested or employed the plaintiffs to print or publish the notices
[First Department, General Term at New York,
May 3, 1875.
In addition to this denial, which it will be perceived is general and specific as to the first essential element of the plaintiffs’ case, namely, employment' there are matters set up as answer and as a further and separate defence. It is not necessary, however, to particularly refer to them. The denial recited strikes, as suggested, at the very foundation of the plaintiffs’ case, and could not be stricken out as frivolous. It created an issue which called for investigation, and the affirmative of which it was incumbent on the plaintiffs to establish.
The order made at Special Term should be reversed, with $10 costs and disbursments.
Order reversed.
Davis, Brady and Daniels, Justices.]