Majority
p. 624James L. Reynolds, Resp’t, v. Henry S. Craus, App’lt. (Supreme Court, General Term, Second Department, Filed December 14, 1891.)
Headnote
Pleading—Sham answer.A general denial cannot be stricken out as sham, unless the defendant has been examined before trial and has admitted the falsity of the answer.
Appeal from order striking out the answer as being frivolous, false and sham.
Action upon a non-negotiable promissory note made by defendant. The complaint alleged the making of such note,; the assignment thereof by the payee to one John M. Horsfall; the assignment by Horsfall to the firm of W. M. Reynolds & Go.; the assignment by W. M. Reynolds & Go. to plaintiff before maturity; the protest of the note, and that there was due to plaintiff the sum of $1,000 and interest, with the fees of protest.
The answer alleged a want of knowledge or information sufficient to form a belief as to all the matters alleged in the complaint
p. 625
except the first, aud therefore denied the same, and also alleged that, defendant was not indebted to the payee in that sum, but ■only in the sum of §500, and that the note was given for her ac■commodation, and as collateral security for any sum that might be found due her on an accounting.
Norman A. Lawbr, for app’lt; Pelham L. McClellan, for ■resp’t.
Under the authority of Wayland v. Tysen, 45 N. Y., 281 , and Thompson v. Erie Railway Co., id., 471, this order must be reversed.
The cases cited by respondent were all decided before the two cases above cited, and so far as they bold that a general denial ■can be stricken out as sham, are overruled.
The only variation from the rule as laid down in these cases has been where a party has been examined before trial and has •admitted the falsity of the answer.
Order reversed, with costs to abide event.
Dykman, J.,.concurs; Barnard, P. J., not sitting.