
    N. Y. COMMON PLEAS.
    Arthur G. Sherman and another, appellants, agt. Samuel C. Boehm and another, respondents.
    
      Code of Civil Procedure, section 538—Answer—What are sham and false denials — When may be stricken out on motion.
    
    A denial in an answer on information and belief of each and every allegation in said complaint constituting the plaintiffs’ first alleged cause of action, is subject to a motion under section 538 of the Code of Civil Procedure to strike out as sham where it appears by uncontradicted proof that the defendant must have personal knowledge of the allegations he denies “ on information.”
    If the allegation is untrue because the averments of the complaint are of personal transactions, the remedial provision of section 538, permitting sham defenses to be stricken out on motion, should be applied and the decision in Wayland agt. Tyson (45 AT. T.,) should not be extended to cover the case. (Larremore, J., dissenting.)
    
    
      General Term, January, 1885.
    
      Before J. F. Daly, Allen and Larremobe, JJ.
    
    Appeal from order denying plaintiffs’ motion to strike out the first defense in the answer of defendants to plaintiffs’ first cause of action. Such defense is as follows; “And, further answering on their information and belief, they deny each and every allegation in said complaint constituting the plaintiff’s first alleged cause of action.” The motion was to strike out the defense as sham, or that the answer be made more definite and certain as to what allegations were so denied, and that plaintiffs have such other and further relief as might be just.
    The court at special term held that the matter complained of was a part of a defense (it being set forth in the answer, together with other allegations, and not separately numbered); that as part of a defense it could not be stricken out as sham {Code, see. 538), and denied the motion.
    
      Winthro]) Parker, for appellants.
    
      Jeroloman & Arrowsmith, opposed.
   J. F. Daly, J.

The matter complained of is not part of a defense. Each denial of separate allegations of the complaint is a separate defense and may be stricken out (Slack agt. Cotton, 2 E. D. S., 400). It appears from the affidavits on which this motion is made, that the denial in the answer is false because certain of the transactions alleged in the com plaint and covered by the denial were personal transactions between plaintiffs and defendants. Ho affidavits were interposed by the defendants denying this statement. It appears, therefore, that a denial of those personal transactions “on information” is a sham and false denial and should be stricken out.

It is no objection to granting this motion that a general or specific denial cannot be stricken out as sham. The decision in Wayland agt. Tyson (45 N. Y., 281) applies to those denials made in the form authorized by section 500 of the Code, viz., absolute denials or denials of information sufficient to constitute a basis of belief. It has been held that a denial “ on information and belief ” may be made where the defendant has no positive knowledge, and is prepared to assert upon such information as he possesses, that the allegations of the complaint are false (Brotherton agt. Downey, 21 Hun, 436). Such denials cannot be regarded as frivolous (Metraz agt. Pearsall, 5 Abb. N. C., 90), nor as irrelevant or redundant (Brotherton agt. Downey, supra). But it has not been held that such a denial is not subject to a motion to strike it out as sham where it appears by uncontradicted proof that the defendant must have personal knowledge of the allegations he denies on information.” It is in effect an allegation in the answer that the only knowledge which defendant possesses is derived from information, and that he has formed a belief from such information that the averments of the complaint are false. If that allegation is untrue because the averments of the complaint are of personal transactions, the remedial provision of section 538 permitting sham defenses to be stricken out on motion should be applied, and the decision in Wayland agt. Tyson (supra) should not be extended to cover the case. The allegations in this complaint which defendants have denied “ on information and belief ” include personal transactions between the parties, as well as matters which are not necessarily within defendant’s knowledge. •

The motion should be granted striking out the defense complained of as sham, .but with leave to defendants to serve an amended answer on payment of ten dollars costs of motion, ten dollars costs of this appeal and disbursements.

Allen, J., concurred.

Labbemobe, J. (dissenting).

The order appealed from was an application to strike out as sham part of the defense to an action. This, it seems to me, is not strict practice. There was no allegation that the defendants personally made the contract, and I think that the cases of Slack agt. Cotton (2 E. D. S., 398), and Collins agt. Coggill (7 Robt., 81) should be followed upon that point. Moreover, a general denial is made, and the rule of Wayland agt. Tyson (45 N. Y., 281) should be applied. The order appealed from should be affirmed.

Order reversed.  