Swinburne v. Stockwell — 58 How. Pr. 312

Majority

p. 312

SUPREME COURT.

Fitch J. Swinburne agt. James Stockwell, as sheriff, William D. Clark and John McKinzie.

Headnote

Answ&r— Sufficiency of denial —Effect of insufficient denial —Erivolousness.

A denial in an answer, “upon information and belief,” is not authorized by the Code, and is insufficient.

Where there is no sufficient denial for the purposes of the action, the complaint is admitted. Pacts set forth as a defense in an answer, inconsistent with the complaint, cannot be construed as a denial, so as to prevent the allegations of the complaint from being taken as true.

A pleading will be held frivolous where there is a decision in point adverse to its sufficiency.

That the answers were interposed in good faith, if frivolous, will not furnish any defense to a motion for judgment on such answers, but is good reason for allowing an amendment.

Special Term,, August, 1879.

Motion for judgment upon the several answers herein as frivolous, also upon all the pleadings for an order striking out the defendant’s answers as sham.

Plambiff, in person, for motion.

W. JD. Brenncm, opposed.

The denial in each of the answers, upon information and belief, is not authorized by the Code, and is insufficient (Code of C. P., sec. 500; Powers agt. R., W. and O. R. R. Co., 3 Hun,, 285 , and cases there cited).

There being no sufficient denial for the purposes of the action, the complaint is admitted (Code of C. P., sec. 522).

The facts set forth in the second defense in defendants’ answer, inconsistent with the complaint, cannot be construed as a denial of it. The complaint being admitted, evidence could not be given under the second defense ( Wood agt. Whit

p. 313

ney, 21 Barb. S. C. R., 190; West agt. N. Ex. Bk., 44 Barb. S. C. R., 176).

The pleadings will be held frivolous when there is a decison in point adverse to its sufficiency (Bliss Code, 405, cases cited in note).

The answers are frivolous, but were interposed in good faith.

This will not furnish any defense to the motion (Hecker agt. Mitchell, 5 Abb., 453 ), but is good reason for allowing an amendment.

Judgment for plaintiff with costs and ten dollars costs of motion, unless defendants amend within ten days after service of a copy of the order.