Roby v. Hallock — 55 How. Pr. 412

Majority

p. 412

SUPREME COURT.

Sidney B. Roby et. al. agt. Emma F. Hallock, impleaded, &c.

Headnote

Answer — when not to he stíñeken out as sham, false amd un1/rm.

Where-the complaint was upon a promissory note, and alleged that it was “duly indorsed to the plaintiffs before maturity, for value,” and the answer was a denial of any knowledge or information sufficient to form a belief whether the note stated in the complaint was ever transferred or indorsed to plaintiffs, as alleged in said complaint, ej- otherwise; on motion to strike -.out,answer as sham, false and untrue?.

Held, that, the issue made was a material one, and could not be stricken out as sham.

An answer to a material fact stated in the complaint, denying sufficient . knowledge or information thereof to form a belief, makes a good issue, upon which the plaintiff holds the affirmative, and which it is incumbent upon him to prove.

The court has no power to strike out such an answer'.

Monroe Special Term, August, 1878.

Motion by plaintiffs to strike out answer as sham, false and untrue.

The complaint is upon a promissory note of $160, alleged to have been made by defendant Hallock, payable to the order of the defendants Meacham and Burr, by which she charged her separate estate and which she delivered to the other defendants, who “ duly indorsed the said note in their firm name to the plaintiffs before maturity for value.” The answer is a denial of “ any knowledge or information sufficient to form a belief whether the note stated in the complaint was ever transferred or indorsed to plaintiffs as alleged in said complaint or otherwise.”

Chas. M. Williams (F. M. Botlum, attorney of record), for motion,

cited Flewry agt. Roger ( 9 How. Pr., 215 );

p. 413

Commonwealth Bank agt. Pryor (11 Abb. [N. S.], 227); The President, &., of Agawam Bank agt. Egerton ( 10 Bosw., 669 -673); People agt. McCumber ( 18 N. Y., 315 ); Kay agt. Whittaker (44 id., 566-573); Corbett agt. Eng ( 22 How. Pr., 8 ; S. C., 13 Abb., 67 , and 8 How., 9 ); The Manufacturers’ Bank of Rochester agt. Hitchcock ( 14 How., 407 ); Miller agt. Hughes ( 13 Abb. Pr., 93 n); McCarty agt. O'Donnell (7 Robt., 431); Roome agt. Nicholson (8 Abb. [N. S.], 343); Hays agt. Southgate ( 10 Hun, 513 ).

T. Horr, opposed.

The only question in the case is whether the court has power to strike out the answer, and if it has the power, I am quite satisfied it should be exercised in this case. That the issue made was a material one, was long since settled (Snyder agt. White, 6 How., Pr., 321 ; Leach agt. Boynton, 3 Abb. Pr., 1 ; Sherman agt. Bushnell, 7 How., 171 ), and it cannot be stricken out as sham (Thompson agt. Erie R. R. Co., 45 N. Y., 468 ).

The plaintiffs’ counsel cites and relies much upon Kay agt. Whittaker ( 44 N. Y., 566 ), decided by the commission of appeals, in September, 1871, and after the court of appeals had, in the same year, in the cases of Wayland agt. Tysen and Thompson agt. Erie Railway Company ( 45 N. Y., 281 , 468), held the other way.

The case of Kay agt. Whittaker goes much to sustain the People agt. McCumber ( 18 N. Y., 315 ), which judge Grover says in Wayland agt. Tysen, did not involve the point, and that it cannot be regarded as an authority for the construction contended for, and the practice has since conformed -to the latter case. Schutze agt. Rodewald ( 1 Abb. N. C., 365 ), Fellows agt. Muller (38 N. Y. S. C. R., 137), and Farmers and Mechanics’ Bank agt. Leland ( 50 N. Y., 673 ), appear to cover this case completely.

The motion must be denied, but' as it was sustained by Kay agt. Whittaker, it is without costs.