Schenkel v. Brettschneider — 159 N.Y.S. 159

Majority

p. 159

SCHENKEL v. BRETTSCHNEIDER.

(Supreme Court, Appellate Term, First Department.

May 26, 1916.)

Headnote

Pleading <§=>122—Denial—Information and Belief.

The complaint averred the making of a lease between defendant and the owner of premises, defendant’s agreement to pay a fixed rental, accrual oC rent, nonpayment, and an assignment by the landlord to plaintiff. The answer denied upon information and belief the first averments, and denied that defendant had knowledge or information sufficient to form a belief as to the paragraph relating to the assignment. Hold, that as defendant, if a tenant, had no means of knowledge concerning the assignment, the answer was sufficient, and could not be questioned on the ground that one cannot deny that he has knowledge or information sufficient to foyn a belief as to matters within his knowledge.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 249-252; Dec. Dig. <§=>122.]

or other cases see same topic & KEY-NUMBER, in all Key-Numbered D'igests & Indexes

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Jacob Schenkel against Samuel Brettschneider, first name fictitious, etc., party intended conducting a laundry at 206 Powell street, Brooklyn, N. Y., as the Sanitary Hand Laundry. From a judgment and order in favor of plaintiff upon the pleadings, defendant appeals. Reversed and remanded.

Argued May term, 1916,

before GUY, BIJUR, and COHALAN, JJ.

A. Wolodarsky, of Brooklyn, for appellant.

Maxwell M. Schenkel, of New York City, for respondent.

This is an appeal from a judgment rendered upon the pleadings in favor of the plaintiff, upon the ground that the answer interposed by the defendant is insufficient as a matter of law, and is frivolous, and was interposed in bad faith. Briefly stated the complaint alleges: First, the making of a lease between one Meyer Ellenbogen, as landlord, and the defendant, as tenant, running from May 1, 1913, to April 30, 1915; second, the entering into possession of the demised premises by the defendant, and his continuance therein until August 31, 1915; third, an agreed rental of $38 per month payable on the 1st day of each month; fourth, the falling due of rent on September 1, 1915, and a failure to pay the same; fifth, the assignment to this plaintiff of said lease before the commencement of this action. The answer was verified, and “denied upon information and belief the allegations in paragraphs 1, 2, 3, and 4,” and “denies that he has knowledge or information sufficient to form a belief as to paragraph 5 of the complaint.” This was held insufficient by the learned trial court and judgment given for the plaintiff.

The respondent urges in his brief that a defendant cannot deny that he has any knowledge or information sufficient to form a belief as to the truth of the allegations in a complaint when the facts alleged are within his knowledge (citing Preston v. Cuneo, 140 App. Div. 144 , 124 N. Y. Supp. 1031 ); but he fails to make any reference to the fifth para

p. 160

graph of the complaint, which sets up an assignment of the lease from the landlord named therein to the plaintiff herein, which paragraph is denied by the answer, and as to which no presumption of knowledge on the part of the defendant can arise.

Judgment and order reversed, with $10 costs to appellant.