Duncan v. Lawrence — 16 N.Y. Super. Ct. 103

Majority

p. 103

Duncan et al., Respondents (the plaintiffs), v. Lawrence et al., Appellants (the defendants).

Headnote

1. Where, in an action, by an indorsee of a promissory note against the maker, all the allegations of the complaint, which are employed to show the title and possession of the note to be in the plaintiff, are put at issue by the answer, the answer is sufficient as a pleading, although it puts each of such allegations at issue by an averment, that the defendant has not any knowledge or information thereof sufficient to form a belief.

(Before Bosworth, Hoffman, Slosson and Woodruff, J. J.)

Heard, April 24th;

decided, May 8th, 1858.

This is an appeal by the defendants, from an order that the plaintiffs have judgment on account of the frivolousness of the answer. The complaint states that the defendants are partners, and on the 24th of August, 1857, in their firm name of S. & T. Lawrence & Company, made a note of that date payable to their own order; and sets forth a copy of the note, and then alleges that they “ indorsed the said note in writing, in their said firm name of S. & T. Lawrence & Company, in blank, and that the said note was afterwards, and before its maturity, duly transferred and delivered for value to the said plaintiffs, then and still

p. 104

being bankers and copartners, carrying on business at the city of Hew York, under the firm name of Duncan, Sherman & Company, and that the said plaintiffs, before the. maturity of said note, became and still are the lawful owners and holders thereof, for value.” That the note is past due and unpaid, and prays judgment for the amount due, including interest.

The defendants in their answer state, that “they have no knowledge or information sufficient to form a belief, whether the plaintiffs now compose or ever did compose the copartnership or firm of Duncan, Sherman & Co., or whether the plaintiffs are or ever were copartners, or whether the promissory note set forth in the complaint was ever at any time transferred or delivered to plaintiffs, or whether the plaintiffs before the maturity of said note, or at any time became, or now are the lawful owners or holders of said note.”

The complaint and answer were both verified.

A. B. Dyetl, for appellants.

Jeremiah Larocqueu for respondents.

By the Court.

—The complaint does not state that the defendants transferred or delivered the note to the plaintiffs.

The Code permits any allegation in a complaint to be put at issue by an answer which states that the defendant has not “any knowledge or information thereof, sufficient to form a belief.” Code, § 149, sub. 1.

All the allegations in the complaint, which are inserted to show title to the note to be in the plaintiffs, are severally put nt issue by an answer in that form. They are thus as directly and absolutely controverted, according to the present rules of pleading, as if the truth of each had been expressly denied. The plaintiffs on the trial of this action, cannot recover without first giving evidence sufficient to establish prima facie, that the note had been delivered to and is held by them.

When in an action, by an indorsee of a promissory note, the answer puts at issue, in a form prescribed by the Code, all the allegations employed in a complaint to show the title and possession

p. 105

of the note to be in the plaintiffs, it is not only not frivolous, but is sufficient as a pleading. (Metropolitan Bank v. Lord, 4 Duer, 630 .)

The answer in this action is therefore sufficient. It raises a material issue, the truth of which the plaintiffs must establish in order to recover.

The order appealed from must, therefore, be reversed, and $10; the cost of this appeal, and the costs for opposing the motion for judgment, must abide the event of the action.

Ordered accordingly.