Martens v. Burton Co. — 58 N.Y. St. Rep. 31

Majority

p. 31

William H. Martens, Resp’t, v. Burton Company, App’lt.

(New York City Court, General Term,

Filed February 8, 1894.)

Headnote

■ Pleadings—Answer—Sham.

In an action on a note, an answer, which denies the endorsement and delivery of such note by the payee to the plaintiff, cannot be stricken out as sham, at least in the absence of proof by affidavit that it was actually so endorsed.

Appeal by defendant from order striking out its answer as sham.

R. McO. Robinson, for app’lt, C. F. Holm, for resp’t.

The complaint alleges the making and delivery by defendant of its promissory note to the order of J. J. Robinson & Co., its endorsement by said Robinson & Co. and by one Kane, and its delivery thereafter to plaintiff. The answer, among other denials, denies its endorsement and delivery by J. J. Robinson & Co. the payees. This is a denial of a material allegation of the complaint and would force proof by plaintiff that the payees, had endorsed the note. Assuming, but not conceding that upon proof by affidavit, that the note was duly endorsed by the payees, the answer could be stricken out as sham; yet as the record does not show that any such proof was made on this motion, the order striking out this answer as sham must reversed with .$10 costs. i

Ehrlich, C. J. and Fitzsimons, J. concur.