Martin v. Erie Preserving Co. — 15 N.Y. St. Rep. 614

Majority

p. 614

John Martin and Mary Martin, App’lts, v. The Erie Preserving Company, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed April 14, 1888.)

Headnote

1. Practice—When answer may be stricken out as beam.

Where an answer contains an affirmative defense in avoidance of a recovery, it may be shown by affidavit that the answer is false, and it may be stricken out as sham for that reason.

2. Same—When answer cannot be stricken out as sham.

Where a corporation is the defendant, and in its answer it makes a denial of the alleged cause of action upon information and belief, such answer cannot be stricken out as sham, upon an affidavit alleging that the facts averred as constituting the plaintiffs cause .of action are necessarily within the defendant's personal knowledge.

Appeal from an order of the Erie county special term denying the plaintiff's motion to strike out the defendant’s answer as sham.

The action is upon a foreign judgment, alleged to have been rendered in the district court of the county of Arapaho, in the state of Colorado, for the sum of $1,388.38, which court the plaintiff alleges to be a court of competent jurisdiction to render such a judgment. The answer contained a general denial of the cause of action set up in the complaint, verified by the president of the defendant, a corporation organized under the laws of this state.

p. 615

Upon the hearing of the motion an exemplified copy of the judgment-roll was read.

Herbert Bissell, for app’lts; George M. Osgoodby, for resp’t.

—The answer contained a general denial of the cause of action set up in the complaint, and the same was duly verified. Such an answer cannot be stricken out as sham. The system of pleading authorized by the Code permits the defendant to deny by answer the plaintiffs alleged cause of action, and thus call upon him to make common law proof on the trial of the issue of the facts alleged constituting his cause of action. Wayland v. Tysen, 45 N. Y., 281 ; Thompson v. Erie Railroad Company, 45 id., 468; Farmers’ National Bank v. Leland, 50 id., 673; Broome County Bank v. Lewis, 18 Wend., 565 .

The plaintiff contends that these cases are not applicable where the denial of the alleged cause of action is made upon information and belief, and the facts alleged as constituting the plaintiffs cause of action ■ are necessarily within the defendants personal knowledge, and claims that in such cases it may be shown by affidavit that the answer is false, and for that reason be stricken out as sham. This position is inapplicable where the answer contains an affirmative defense in avoidance of a recovery, and in such cases it may be shown by affidavit that the answer is false, and it may be stricken out, and for that reason a sham. But if it should be conceded that the general rule' is as contended for by the counsel for the plaintiff in actions against persons, it does not apply in cases where a corporation is the defendant making a denial upon information and belief. The answer by a corporation may be verified by one of its officers, and in the form here used.

It is not to be supposed that the officers of the corporation having charge of its affairs, have personal knowledge of all of its business transactions. If a corporation dispute the cause of action set up in the complaint, it may, by its answer, deny the same on information and belief; otherwise, it might not be able, in many instances, to serve a verified answer. If the officer making the verification does not have personal knowledge that the allegations in the complaint relative to the cause of action are false and untrue, he would place himself in a position of great peril in making the affidavit of verification, should the answer contain a positive denial of the cause of action. It is declared in section 524, that unless the allegations in a pleading are stated to be on information and belief of a party, they must be regarded for all purposes, including a criminal prosecution, as having been made upon the personal knowledge of the person verifying the pleading.

p. 616

The exemplified copy of the record produced on the motion, does not show that process in the action was served on the defendant, but it contains a recital that the defendant appeared, by an attorney, and answered. That portion of the record may be disproved by the defendant by competent evidence; and he may also show that the district court in which the judgment was rendered, did not have jurisdiction over the subject-matter which constituted- the plaintiff’s cause of action.

Order affirmed, with ten dollars costs and disbursements.

Haight, Bradley and Dwight, JJ., concur.