Henry Huber Co. v. McAllester

Headnote

Pleading—Sham Answer—Striking Out. In an action for goods sold and delivered, defendant’s answer, admitting the sale, but denying the amount or reasonable value of the goods, will be stricken out as sham, where plaintiff’s proof shows that defendant acknowledged the debt, and promised to confess judgment, in a letter written after suit threatened, and defendant’s affidavit in answer to the motion fails to point out any defense.

Appeal from special term.

Action by the Henry Huber Company against Henry W. McAllester for goods sold and delivered. From an order striking out defendant’s answer as sham, defendant appeals. Affirmed.

The first paragraph of complaint alleges a sale of goods between January 17, 1891, and September 13, 1891, by the firm of Henry Huber & Co. to defendant, of the value of $341.48, no part of which has been paid. The second para-, graph alleges an assignment of this claim by the seller to the plaintiff, a foreign corporation having a principal office in the city of New York. The third paragraph, for a separate cause of action, alleges that plaintiff is a foreign corporation having a principal office in the city of New York. The fourth paragraph alleges a sale of goods by plaintiff to defendant between February 3, 1893, and March 18,1893, of the.'reasonable value of $43.05, and admits payment of 94 cents. The answer, omitting formal parts, is as follows:

“ First. He admits the allegation in the first and fourth paragraphs of the complaint that the firm of Henry Huber & Company and the Henry Huber Company sold him certain goods, wares, and merchandise, but he denies each and every other allegation in said paragraphs contained. Second. Defendant has no knowledge or information sufficient to form a belief as to the facts stated in the second and third paragraphs of plaintiff’s complaint, and therefore he denies' the same. ”