
    ROBY v. HALLOCK.
    
      N. Y. Supreme Court, Fourth Department;
    
    
      Special Term, August, 1878.
    Pleading. — Motion to Strike Out Denial as Sham.
    A verified denial of knowledge or information sufficient to form a belief whether the note stated in the complaint (as made by the answering defendant, and indorsed by the payees to plaintiff) was ever transferred or indorsed to plaintiffs, as alleged in said complaint or otherwise, cannot be struck out on motion as sham.
    
    
      Motion by plaintiff to strike out answer as sham, false and untrue.
    This action was brought by Sidney B. Roby, and others, against Emma E. Hallock, and others.
    The complaint was upon a promissory note for $160, alleged to have been made by defendant, Hallock, payable to the order of the defendants, Mfeacham and Burr, by which she charged her separate estate, and which shé delivered to the other defendants, who “ duly indorsed the said note in their firm name to the plaintiffs before maturity for value.”
    The answer.was a denial of “any knowledge or information sufficient to form a belief whether the note stated in the complaint was ever transferred or indorsed to plaintiffs as alleged in said complaint, or otherwise.”
    
      Charles M. Williams (F. M. Bottum, attorney), for motion,
    Cited Fleury v. Roger, 9 How. Pr. 215; Commonwealth Bank v. Pryor, 11 Abb. Pr. N. S. 227; President, &c. of Agawam Bank v. Egerton, 10 Bosw. 669-673; People v. McCumber, 18 N. Y. 315; Kay v. Whittaker, 44 Id. 566, 573; Corbett v. Eno, 22 How. Pr. 8; S. C., 13 Abb. Pr. 67, and 8 How. Pr. 9; Manufacturers’ Bank of Rochester v. Hitchcock, 14 How. Pr. 407; Miller v. Hughes, 13 Abb. Pr. 93, n; McCarty v. O’Donnell, 7 Robt. 431; Roome v. Nicholson, 8 Abb. N. S. 343; Hays v. Southgate, 10 Hun, 513.
    
      T. Horr, opposed.
    
      
       As to frivolous denial, see Merchant’s Bank v. McNaughton, 1 Abb. New Cas. 393, n.
      
        For answer alleging that plaintiff is not the real party in interest, see White v. Drake, 3 Abb. New Cas. 133.
      Denials frivolous if not material. People O. Dispensary Society, 7 .Ians. 304.
    
   Angle, J.

The only question in the case is whether the court has power to strike out the answer; and if it has the power, I am quite satisfied it should be exercised in this case.

That the issue made was a material one, was long since settled (Snyder v. White, 6 How. Pr. 321; Leach v. Boynton, 3 Abb. Pr. 1; Sherman v. Bushnell, 7 How. Pr. 171), and it cannot be stricken out as sham (Thompson v. Erie R. R. Co., 45 N. Y. 468.

The plaintiff’s counsel cites and relies much upon Kay v. Whittaker (44 N. Y. 566), decided by the commission of appeals in September, 1871, and after the court of appeals had in the same year, in the cases of Wayland v. Tysen, and Thompson v. Erie R. R. Co. (45 N. Y. 281, 468), held the other way.

The case of Kay v. Whittaker goes much to sustain People v. McCumber (18 N. Y. 315), which Judge Grover says, in Wayland v. Tysen, did not involve the point, and that it cannot be regarded as. an authority for the construction contended for, and the practice has since conformed to the latter case. Schultze v. Rodewald (1 Abb. New Cas. 365), Fellows v. Muller (38 N. Y. Super. Ct. 137), and Farmers’ Nat. Bank of Fort Edward v. Leland (50 N. Y. 673), appear to cover this case completely.

The motion must be denied ; but as it was sustained by Kay n. Whittaker, it is without costs.  