
    David M. Alexander, Appellant, v. City of Albany, Respondent.
    
      City Court of Albany — a denial on “ knowledge or information sufficient to form a belief ” is ineffective — no proof of the cause of action is required where the complaint is verified.
    
    A denial of “knowledge or information sufficient to form a belief” is not an. authorized form of denial in the City Court of Albany.
    If the complaint is verified, the plaintiff is not obliged to make proof of his cause of action, although the answer interposed thereto, in addition to the denial on information and belief, set up an affirmative defense.
    
      Appeal by the plaintiff, David M. Alexander, from a judgment and order of the County Court of the county of Albany in favor of the defendant, entered in the office of the clerk of the county of Albany on the 28th day of March, 1900, affirming a judgment of the City Court of Albany rendered on the 28th day of December, 1899, dismissing the plaintiff’s complaint.
    
      Harold D. Alexander, for the appellant.
    
      Arthur L. Andrews, for the respondent.
   Kellogg, J.:

The' plaintiff brought this action in the City Court of Albany, and served with the summons a complaint duly verified and alleging properly a cause of action on contract — a lease of premises to defendant at a stated rental and non-payment of rent accrued. The answer “ Denies that it has any knowledge or information sufficient to form a belief ” touching the material allegations of the complaint, then pleads payment and the Statute of Limitations. When the case came on for trial the plaintiff claimed that the defendant’s denial, as stated in the answer, did not put plaintiff to a proof of his claim and rested his case.

The defendant then moved the court for a nonsuit on the ground that plaintiff had failed to establish a cause of action, which motion was granted. The correctness of this decision wholly depends upon the construction to be given to the governing statute. Was the denial in defendant’s answer of any knowledge or information sufficient to form a belief ” a good denial ? Was any denial necessary to put plaintiff to proof, the answer having alleged new matter as an affirmative defense ?

In Lambert v. Hoffman (20 Misc. Rep. 331) both of the above questions appear to have been passed upon. The act construed is in words the same as the one here for construction. (Laws of 1882, chap. 410, §§ 1346, 1383.) The answer made a similar denial and alleged an affirmative defense. It was there held that the denial was not good and that plaintiff was not required to make proof.

This case was followed in Boston Woven Hose & Rubber Co. v. Jackson (25 Misc. Rep. 781) and the rule applies to such portions of the complaint as were similarly denied, thus adopting the construetion placed upon a pleading which prevails in the higher courts as' to holding as admitted facts alleged and not properly denied. To the same effect are Nicoll v. Clark (13 Misc. Rep. 128); Sanchez & Haya Co. v. Hirsch (27 id. 202) ; Equitable General Providing Co. v. Eisentrager (65 N. Y. Supp. 296).

In all these cases the answer alleged an affirmative defense, and also alleged a denial of knowledge or information sufficient to form a belief to the whole or to some counts of the complaint.

The learned counsel for the defendant does not question the authority of these decisions, nor does he claim that a denial of knowledge or information is a recognized denial in the City Court of Albany, or is a good denial. He, however, appears to claim that where the answer alleges an affirmative defense no denial of the allegations of the complaint is necessary, and in the absence of such a denial the plaintiff, nevertheless, must make proof of' his. cause of action, and this view he seems, to have impressed upon the City Court and upon the learned county judge. The logical conclusion from the reasoning of counsel would be that in no case could the plaintiff have judgment without proof, except in case of default of a pleading of any sort on the part of the defendant. The reasonableness of such a construction is not apparent.

Khe intention of the Legislature seems to have been to avoid the necessity of proof where the verified complaint stated a cause of action on contract, and unless the facts alleged should be denied, should be taken as admitted, thus pointing out a practice in the inferior courts which has long prevailed in the higher courts/ To attribute to the Legislature the reasonless and seemingly absurd .intention of giving effect to a verified complaint, in case a defendant suffered a default by not appearing, and denying to the same complaint the same force and effect where the defendant appeared, but did not deny the allegations of the complaint, should at least have very plain and clear language in the law to support such a contention. If the proposition were reversed and the plaintiff were required, in case df absence of the defendant, to make his proof, but in case,of his presence and failure to make denial, then no proof should be required, some good sense in providing a safeguard to the rights of parties might be seen: I see nothing .in the wording of section 3, chapter 312 of the Laws of 1898 here construed, which requires the court to evolve a meaning which so far destroys its merits as a rule of practice. If it were possible to extend its meaning to make a denial of “ knowledge or information ” a good denial, and so make the practice in the inferior courts conform in these particulars to the practice in the higher courts, it would dispose of one pitfall to the unwary practitioner, but to add another snare is neither judicious nor necessary.

The judgment of the County Court and City Court of Albany ' should he reversed, with costs in all the courts.

All concurred, Parker, P. J., in result.

■ Judgment of the County Court and City Court of Albany reversed, with costs in both courts, and new trial granted in the City Court of Albany. Order to be settled by Edwards, J.  