Hyperlawhypertext legal databasebeta Richardson v. Wilton 6 N.Y. Super. Ct. 708

← Cases

Richardson v. Wilton

6 N.Y. Super. Ct. 708 4 Sandf. 708 Court N.Y. Super. Ct. Decision date 1852-03-06 English

Decision Majority — Oakley, Ch. J., · Concurring — Sandford, Duer, and Campbell, J. J.)

Contents
p. 708
Richardson v. Wilton.

Headnote

Where the complaint alleges a fact which is presumptively within the defendant’s personal knowledge, he will not, in general, be permitted to answer that he has not knowledge or information sufficient to form a belief, and therefore he denies the same.
If, from lapse of time, or other circumstances, he cannot admit or deny the charge positively, he must set up such circumstances, either in his answer or the affidavit of verification.
March 6, 1852.
The complaint was for an assault, charging that the defendant spit in the plaintiff’s face. The answer as to this allegation
p. 709
■was, that the defendant has not knowledge or information sufficient to form a belief, whether he did spit in the plaintiff’s face or not, and therefore he denied the same. The plaintiff moved to strike out the answer as sham, irrelevant, or frivolous.
H. A. Griswold, for the plaintiff.
G. Shaffer, for the defendant.

(with the concurrence of

The motion gives rise to this question, whether the defendant may put in an answer in this form to a fact which is presumptively within his own personal knowledge. We think that as a general rule he cannot. There may be cases in which, although apparently within his knowledge, he does not know or remember the facts alleged. If so, he must in his answer, or in the affidavit verifying it, state the lapse of time or other circumstances, which he supposes will warrant the qualified denial permitted by the code when the party, has not knowledge or information sufficient to form a belief.

Motion granted.