
    Fleury v. Roget.
    In an action upon a promissory note, a denial in the answer, that the plaintiff is the lawful owner and holder, without alleging a title in a third person, will be • struck out as irrelevant and frivolous.
    So it is also a frivolous defence, that when the note was given it was agreed that it should be renewed upon request.
    May 20, 1850.
   Bosworth, J.

The plaintiff moves to strike out defendant's answer, as sham and irrelevant. I think it is such an answer, and that the motion should be granted.

The complaint is upon two promissory notes made by the defendant, payable to the order of, and by him delivered to the plaintiff. The complaint also avers that the plaintiff is “ the real party in interest in this action, and the lawful holder and owner” of the two notes, and of each of them.

The defendant answers that he has no knowledge or information sufficient to form a belief whether the plaintiff is the lawful holder and owner of the two notes : It admits therefore the making and delivery of the notes to the plaintiff, that they are unpaid, that he is the real party in interest in the action, but professes ignorance whether he is the lawful holder and owner. On the facts admitted, he is, in judgment of law, the lawful owner and holder, and on producing the notes at the trial, he is entitled to recover, and the answer contains no allegation of fact, which, if proved, would be a defence.

The answer sets up an agreement contemporaneous with the making of the notes, to renew them, on application, and the refusal by the plaintiff, to renew them. Tnis is clearly irrelevant matter, for whether true or false, it is of no legal importance.

The plaintiff also moves on affidavits, which state that one of the notes was given for moneys advanced, and the other for "goods sold by the plaintiff to the defendant. They deny the making of the alleged agreement to renew the notes, or that the defendant applied to have them renewed, or that he ever said anything to the plaintiff on that subject; and that the plaintiff believes the answer was put in merely for the purpose of delay: these facts except the last are not controverted.

The defendant read an affidavit, stating that the answer was not put in “ merely for delay, but in good faith that he “ believes the plaintiff has parted with all right, title, and ownership in, and to the said notes, and is now suing on the said notes for the benefit of some other and third party.”

It does not state a fact or circumstance, as the basis of such belief. It does not allege that any third party has ever claimed any interest in either of them, or applied for payment of either of them, nor anything elsQ to justify the slightest suspicion that they have not been at all times the property of the party to whom the defendant delivered them. The answer therefore puts in issue an immaterial allegation in the complaint, immaterial in this case, because the complaint would be good without it. The new matter set up must, for the purpose of this motion, be deemed as false in fact, as it is irrelevant in law. The pleadings admit that the party justly owns these notes, and that they were made and delivered to the plaintiff, were made payable to his order, and that he is the real party in interest in this action. The motion must be granted with $10 costs.

Approved by all the judges, upon consultation.  