
    Jacob Meurer et al., Plaintiffs, v. Sebastian G. Brinkman, Defendant.
    (Supreme Court, Kings Special Term,
    October, 1898.)
    -Bills and notes — An answer, denying that notes were made and delivered for value, cannot be struck out as sham.
    An answer of the maker, which denies the allegation of the complaint of the payee that the notes in suit were made and delivered for value, raises the issue of a want of consideration sufficiently to admit proof thereof, and hence a" motion, made upon affidavits, to strike out the answer as sham must be denied as, although defences may be struck out as sham, denials cannot be.
    Motion to strike out an answer as sham.
    George H. Fisher for motion.
    Robert Goeller opposed.
   Gaynor, J.:

The action is upon two promissory notes by the rpayee against the maker. The answer denies the allegation of the 'complaint that the notes were made and delivered for value. This ■denial raises the issue of want of consideration, it not being necessary to plead lack of consideration as a “ defence ” (Evans v. Williams, 60 Barb. 346). • The motion is upon affidavits to strike the answer out as sham (Code Civ. Pro. sec. 538)., A general or special denial cannot be struck out as sham. Only “ defences ” may be struck out as sham (Wayland v. Tysen, 45 N. Y. 281). Ho issue raised by a denial is a defence ”. A defence ” is a plea of new matter, viz., matter outside of any issue which may be raised by a general or special denial. Matter which can be proved under a denial is not a “ defence ” (Code Civ. Pro. secs. 500, 507; Flack v. O’Brien, 19 Misc. Rep. 399; Green v. Brown, 22 Misc. Rep. 279; von Hagen v. Waterbury Mfg. Co. 22 Misc. Rep. 580). It has become quite common to plead denials under the head For a defence ”; and I admit there are like inadvertences in opinions of judges; but an educated bar should not be the followers but the correctors of such things.

The motion is denied.  