
    William H. H. Smith et al., Plaintiffs, v. Henry Homer, Defendant.
    (Supreme Court—Erie Special Term,
    January, 1896.)
    Pleading—Verified answer cannot be stricken out as sham.
    An answer setting up an affirmative defense, when duly verified, cannot he stricken out as sham.
    Motion by the plaintiffs to strike out defendant’s answer as sham. '
    
      George Wing, for plaintiffs.
    
      George W. Cothran, for defendant.
   Ward, J.

This is an action where the plaintiffs seek to recover upon a promissory note executed by the defendant to them for $766.19. The defendant answered alleging that the note was paid, which - answer, he verified as required by the Code. The plaintiff, upon this motion, produced several affidavits which tended strongly to show that the answer was false. Ho affidavit was read .in opposition to the motion. The defendant relied upon his answer' as verified, and insisted that the court had no power to' strike out this answer, or, if the power existed so to. do,_ the’court should'not exercise it in any .case- where • a..defense - properly .pleaded was sustained by the'verification of the defendant.

An interesting question is- thus, presented. A review of the decisions upon the subject leaves the question iii considerable doubt. The plaintiffs rely upon the case of Robert Gere Bank v. Inman, 51 Hun, 97. In that case the action was brought by an indorsee of a promissory note, and the maker defended. 'The- answer. contained sirdply a denial of any knowledge or -information sufficient to form a belief as- to the truth of the. allegations of indorsement and ownership of the note set fqrtli in the complaint, and was verified. The Special Term refused to strike .out the answer, which '.was affirmed at General Term, and .the court, by Follett, J., states, after reviewing the cases to some ejxtent in this state, as the' result of those cases: That an affirmative answer or defense which raises a material, issue may be stricken out as sham, but a general or specific denial which raises a material issue cannot be stricken out as sham if pleaded in a .form permitted by the Code.”

Whether this general statement of thb law by the learned court can be sustained as to. affirmative defenses is the question here: It will be observed that in that case the only question before the court was whether what was equivalent to a general denial should be stricken out as sham, and the remark, therefore, as to affirmative defenses was not necessary to the determination of that case ahd was, therefore, obiter. This case went to the Court of Appeals, and: that court -affifméd it upon the opinion of the General Term. 115 N. Y. 650.

In People v. McCumber, 18 N. Y. 315, it was held, that an answer -denying a -material allegation in the complaint might be stricken out as sham, though, duly verified,' and that an answer,- the falsity of which is apparent, is sham, irrespective of its form, as affirmative or negative, but in Wayland v. Tysen, 45 N. Y. 281, it was held that the court had no power to strike out as sham an answer consisting of a general denial of the material- allegations of the -complaint, and the court there (Grover, J.), in commenting upon the practice of try- • ing issues upon affidavits, and inferentially disapproving of it, says: '

The moving party has only to satisfy the court hy a preponderance of evidence of this character of the falsity of the plea, and it may be struck out, although specifically verified by the party interposing it, notwithstanding ■ such party may insist upon his right to a trial, when he can have the privilege of cross-examining the affidavits, and having their credibility passed upon by a jury. I think that, by the true construction of the section, the power of the court tó strike out pleadings was not extended beyond what it was under the pre-existing law. That, we have seen, extended only to such affirmative defenses as were not verified by the oath of the defendant or other equi/oalent evidence. It may be said that a motion to strike out a pleading is not the trial of an issue joined thereby. This is literally true, but in substance the difference is • scarcely perceptible. It calls for a determination whether the pleading be true or false; and if found false and struck out, the defendant is as effectually deprived of any benefit therefrom as if found false upon a verdict, although he can derive no. benefit from a failure to find it false, for the plaintiff will still be entitled to a trial of the issue. It will thus be seen that all the plaintiff hazards by the motion is the costs, while the defendant is .precluded by an adverse result. It may be said that the power claimed will only be exercised in' clear cases, where it is manifest that the desire of the defendant is only for delay, and that he is practising a fraud for this purv pose by putting a falsehood • upon the record. Concede the construction of the section claimed by the respondent, as we must to sustain the order, and its exercise cannot be confined to this class of- cases. The judgment of the court must be exercised upon the affidavits, and if satisfied of the falsity of the pleading, although, sustained by opposing affidavits, it becomes a duty so to decide by granting the motion. It is in the power of.the plaintiff, in every case, as was done in this, to preclude' the defendant from interposing either a general denial or a denial of specific facts by verifying his complaint. * * * If the defendant commits perjury in.verifying the .. answer, * * * be ought to be prosecuted therefor. * * I am satisfied that the intention of the legislature , in enacting the section of the Code under consideration (the Code of Procedure being the' same as in the present Code) was not to confer any new power upon the .court, but to give legislative saiiction to that exercised under existing law.” ■

That power, as shown in the case, was simply to strike" out unverified answers alleging .affirmative 'defenses which were shown clearly to be false. The court, in 51 Hun, supra, seems, to have overlooked the distinction.here made between a verified affirmative" answer and one not verified. ■ The difference is manifest. In. one case, the plaintiff’s affidavit discloses! the absolute -falsity of the answer, with no counter affidavit to ¡sustain the answer; while in the other cáse, and the case at'bar, the answer is sustained by the affidavit of the defendant, and I am called upon on this motion to try this' issue by affidavits. • The danger of stich procedure is well pointed out'in the clear and terse language ' above quoted. The principle once admitted that’ the court may pass upon affirmative defenses upon motion where they are duly verified will leave it in. the power of the court at' all times, .upon motion, where an affirmative defense, such as payment, satisfaction, usury or any other affirmative defense is alleged, to deprive the defend- • ant of his right to have his issue tried by the methods pointed out by the statute, and before a jury or a court, as the Case may -warrant.

In Farnsworth v. Halstead, 18 Civ. Proc. Rep. 227, the defendant pleaded in bar a judgment recovered for the same cause of action set forth in the' complaint. An attempt was. made upon affidavits to strike out this answer as sham, and-the court (Ó’Bbíen,' J.), in a Well-considered opinion, held' that this could riot he done, and denied the" motion.

In Webb v. Foster, 13 J. & S. 311, the action was for rCnt, and the answer,' among other defenses, pleaded payment, and the Superior' Court, General Term, held that this answer could not be stricken out as sham. Sedgwick, J., says: “ I further agree with the learned counsel for the respondent that the principles stated in Wayland v. Tysen, 45 N. Y. 281, and Thompson v. Erie R. R. Co., 45 id. 468, prevent an.affirmative defense from being stricken out as sham upon affidavits. If it could, there would' be no reason why a defendant should not have the right to strike-out a complaint as sham.”

It will be observed in this case the question was directly up, whether the defense of payment could, be struck out as' sham. I hold that this cannot be done, both upon reason and authority. While it may be conceded that the case before us is an exceedingly strong one for the exercise of this power, still if exercised it will be like the entry of the wooden horse,'full of danger, and engraft a principle upon our jurisprudence which should not be sanctioned, which would be productive of mischief and would lead to judicialusurpation, and seriously impair the right of trial by jury and the right of defendants to that procedure in courts of justice which entitle' them to be confronted by the witnesses who seek to destroy their defense, and have the privilege of cross-examination.

The motion to strike out must be denied, but, as the question is not free from difficulty, without costs.

Motion denied, without costs.  