
    The Atkiengesellschaft Arnold B. Heine & Co., Respondent, v. Solon H. Newmark, Appellant.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Pleading — Motions relating to pleadings — Motion to strike out pleading or defenses — Sham answer — Affirmative defenses.
    An affirmative defense, when duly verified, cannot be stricken out as sham, unless it appears to be false by the defendant’s own affidavits.
    Appeal from so much of an order of the City Court of the city of Hew York which strikes out as sham the second defense set up in the answer to the second cause of action in the complaint.
    Hutter & Frauchthandler, for appellant.
    Walter N. Seilgsberg, for respondent.
   Per Curiam.

The defendant appeals from so much of the order of the court below as strikes out the second defense contained in the answer. The action is upon a promissory note. The defense which has been .stricken out as sham pleads that the note is without consideration.

An affirmative defense, when duly verified, cannot 'be stricken out as sham, unless the defendant’s own affidavits show that the verified answer is false.

The part of the order appealed from is reversed, with ten dollars costs and disbursements.

Present: Gildersleeve, Seabury and Lehman, JJ.

Order reversed, with ten dollars cost and disbursements.  