Taylor v. Smith — 29 N.Y. St. Rep. 365

Majority

p. 365

James E. Taylor, Resp’t, v. Andrew K. Smith et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 24, 1890.)

Headnote

Pleading—Frivolous answer.

In an action by the endorsee upon a promissory note the answer admitted the making and delivery, non-payment and protest, and denied each allegation not theretofore admitted. Held, that the allegations as to endorsement and transfer not being admitted, were included in the denial, and that the answer could not be stricken out as frivolous.

Appeal from an order striking out an answer as frivolous, and from the judgment entered pursuant to that order.

Edmund É. Dodge, for app’lts; Clark Bell, for resp’t.

The action was brought against the makers and -endorsers of a promissory note. The answer admitted the making and delivery of the note, that it had not been paid, and that it was protested for non-payment. And it then contained a denial, on information and belief, of each and every allegation in the complaint not theretofore admitted. The allegations not in this manner admitted were that the payee in the note had sold, transferred and endorsed it to the plaintiff, who thereby became the lawful owner and holder thereof. These allegations were, therefore, included in the denial. And as the rule of pleading has now become settled, that form of denial was authorized by the Code. Bennett v. Leeds Mfg. Co., 110 N. Y., 150 ; 16 N. Y. State Rep., 841.

The endorsement and transfer of the note to the plaintiff were material facts, under this denial, to be established by him before a recovery in the action could be permitted. Hays v. Hathorn, 74 N. Y., 486 .

In no other way could the plaintiff appear to be entitled to recover on the note than by proving its alleged endorsement and delivery to him. For those facts were in this manner denied. And it is not allowable to strike out a material denial of an answer, on a special motion. But the issue so created must be disposed of by a trial of the action. Farmers' Bank, etc., v. Leland, 50 N. Y., 673 ; Roby v. Hallock, 5 Abb. N. C., 86 . Both the order and judgment should, therefore, be reversed, with costs to the appellants to abide the result of the action.

Yan Brunt, P. J, and Brady, J, concur.