p. 321The Genesee Mutual Insurance Company agt. Moynihen.Headnote
Where the answer admitted the execution of the note (premium nóte) and the delivery of the policy of insurance, but as to each and every other allegation alleged in the complaint, the defendant had not sufficient knowledge to form a belief (the complaint alleging the facts upon which the defendant had become liable upon the premium note). Held, that the answer was sufficient, under § 149, 1st subdivision, to put the plaintiff to his proof.Monroe Circuit and Special Term,Motion for judgment upon the complaint upon the ground of the insufficiency of the answer.
The action is upon a premium note given by the defendant to the planitiff. The note is in the words and figures following: “$70. For value received in policy No. 7295, dated Nov. 27th 1848, issued by the ‘ Genesee Mutual Insurance Company,’ I promise to pay the said Company or their treasurer for the time being, the sum of seventy dollars, in such portions and at such time or times as the directors of said company, may, agreeably to their act of incorporation require. ’ Andrew Moynihen.” The complaint sets forth the note, the issuing of the policy of insurance, together with other facts by reason of which the plaintiff claims the defendant is liable to pay the note.
The answer is in the following words: “The said defendant, Andrew Moynihen, for answer to the complaint of the plaintiff, says that he admits the execution of the said note and the delivery of the said policy of insurance; and the defendant further says that as to each and every other allegation in the said complaint set out and not herein expressly admitted, this defendant has not any knowledge thereof sufficient to form á belief.”
Hatch & Hatch, for Plaintiff
J. C. Cochran, for Defendant.
The law as to what an answer shall contain is found in § 149 of the Code. The first subdivision of that section is as follows: “ The answer of the defendant shall contain,
p. 322In respect to each allegation of the complaint controverted by the defendant, a general or specific denial thereof, or denial thereof according to his information and belief, or of any knowledge thereof sufficient to form a belief.”
The answer in this case is clearly within this section. The facts admitted are the execution of the note and the delivery of the policy. With regard to the residue of the complaint the defendant denies any knowledge thereof sufficient to form a belief.
If the facts admitted by the answer were sufficient to entitle ..the plaintiff to recover, this motion would be in order, and judgment would now be rendered in favor of the plaintiff. But such is not the case. There are material allegations in the complaint which are not admitted, and which remain to he established The defendant "by this denial has put the plaintiff to the proof of them. (See Monell's Prac. ed. of 1849, p. 146.)
The motion must he denied, with $7 costs.