Hyperlawhypertext legal database Sanchez & Haya Co. v. Hirsch 57 N.Y.S. 795

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Sanchez & Haya Co. v. Hirsch

57 N.Y.S. 795 Court N.Y. App. Term Decision date 1899-04-21 English

Delivered by ilacLEAN, J.

Contents

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p. 795
(27 Misc. Rep. 202.)
SANCHEZ & HAYA CO. v. HIRSCH.
(Supreme Court, Appellate Term.
April 21, 1899.)

Headnote

1. Pleading—Denial on Information and Belief.
A denial on information and belief is not authorized, under Code Civ. Proc. § 2938, in the municipal courts of New York City.
2. Same—Defenses—Another Action Pending.
The defense that there is another action pending between the same parties for the same cause, where not appearing on the face of the complaint, is a good defense, under Code Civ. Proc. § 498.
Appeal from municipal court, borough of Manhattan, First district.
Action by the Sanchez & Haya Company against Lottie Hirsch. From a judgment for plaintiff, defendant appeals.
Reversed.
Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, J J.
Jacob Brenner, for appellant.
Caesar Simis, for respondent.

For answer, the defendant alleged (1) that she had no knowledge, or information sufficient • to form a belief, as to the truth of the allegations of the complaint, excepting she admitted she had not paid the sum demanded; and (2) she alleged, for a separate and distinct defense, that at the time of the commencement of the action, and for a long time prior thereto, there was pending in the supreme court of the state of New York an action brought by the same plaintiff against her on the same alleged cause of action set forth in the complaint, which action is still undetermined, and is now at issue. The court struck out the answer “because the denials therein are stated to be on information and belief, and on the insufficiency of the second de

p. 796
fense.” This was proper as to the first defense, for an answer may not be interposed in the municipal court in that form. Code Civ. Pro.c. §'2988; Consolidation Act, § 1347; Lambert v. Hoffman, 20 Misc. Rep. 331 , 332, 45 N. Y. Supp. 806 . The second defense should not have been stricken out, as it would be good, if proven. Code Civ. Proc. § 498. The judgment of the municipal court should be reversed, with costs to the appellant.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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