
    Robert Gere Bank v. Inman et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    January Term, 1889.)
    1. Pleading—Sham Defenses—What are.
    Under Code Civil Proc. N. Y. § 538, providing that a sham answer or a sham defense may he stricken out on motion, a general or specific denial of a material averment, if pleaded in a form permitted by the Code, cannot he stricken out as sham, though shown to be false to defendant’s knowledge, and interposed for delay.
    2. Same—Denial of Material Averment.
    Proof of an averment that, prior to the maturity of the note sued on, the payee, for value, indorsed and delivered it to plaintiff, who became and remains the owner thereof, is essential, and its denial, upon information and belief, raises a material issue, which cannot be stricken out as sham.
    Appeal from special term, Onondaga county.
    Action by the Robert Gere Bank, as indorsee of a promissory note, against Horace Inman and the Onondaga Iron Company. From an order denying a motion to strike out defendant Inman’s answer as sham, plaintiff appeals.
    Argued before Follett and Martin, JJ.
    
      
      Martin A. Knapp, for appellant. P. J. Lewis, for respondent.
   Follett, J.

Appeal from an order of the special term, denying plaintiff’s motion for judgment on the grounds (1) that the respondent’s answer is sham, (Code Civil Proc. § 538;) (2) that it is frivolous, (Id. § 537.) The action is brought by the indorsee of a promissory note, payable to order, against the maker, Horace Inman, and the indorser, the Onondaga Iron Company. The maker alone defends. The complaint is in the ordinary form in an action by an indorsee against the maker and indorser of a promissory note, transferred for value before due. The answer contains simply a denial of any knowledge or information sufficient to form a belief as to the truth of the allegations of indorsement and ownership set forth in the complaint. The pleadings are verified.

The affidavits upon which this motion was heard show beyond question that the answer is sham; in fact, was interposed in bad faith, and solely for the purpose of delay. The Code of Civil Procedure provides: “Sec. 538. A sham answer or a sham defense may be stricken out by the court, upon motion, and upon such terms as the court deems just. ” This Code does not define the terms “sham answer” or “sham defense,” neither did the old Code. But the court of appeals has held that “sham answer” and “false answer” are synonymous terms. People v. McCumber, 18 N. Y. 315, 321; Thompson v. Railroad Co., 45 N. Y. 468, 471; Fettretch v. McKay, 47 N. Y. 426. Under this section and the above cases, it has been many times forcibly argued that when a plaintiff shows beyond doubt that an answer or defense, negative or affirmative, is clearly false in fact it may be stricken out; and it was so held in People v McCumber, 27 Barb. 632, affirmed 18 N. Y. 315, where a “specific denial” was stricken from a verified answer. The power was asserted and exercised in Walker v. Hewitt, 11 How. Pr. 395, and in Bank v. Pryor, 11 Abb. Pr. (N. S.) 227. Whether general or specific denials can be stricken out as sham, under statutory provisions similar to the section above quoted, is a question upon which the courts of other states do not agree. Bliss, Code Pl. § 422. Before the Codes, the remedy of striking out a plea as sham or false was confined to such as set up new matter, and was not applicable to pleas which interposed the general issue as a defense. Wood v. Sutton, 12 Wend. 235; Bank v. Lewis, 18 Wend. 565, 567; Bank v. Smith, 15 How. Pr. 329, 331; Wayland v. Tysen, 45 N. Y. 281; Grah. Pr. (2d Ed.) 251. Such was the rule, even though the plaintiff was able to establish by affidavits, beyond question, that the plea was false in fact. PTotwithstanding the fact that the old Code was designed to compel litigants to truthfully plead, it wras held, following the old rule, that a “generaldenial” could not be stricken out as sham, though shown to be false in fact, (Wayland v. Tysen, 45 N. Y. 281;) and also that a “specific denial” could not be stricken out as sham, though shown'to be false in fact. Thompson v. Railroad Co., 45 N. Y. 468; Bank v. Leland, 50 N. Y. 673; Claflin v. Jaroslauski, 64 Barb. 463; Bank v. Smith, 15 How. Pr. 329. Kay v. Whitaker, 44 N. Y. 565, does not conflict with Wayland v. Tysen and kindred eases above cited. The defense stricken out as sham in that ease was payment, which has always been held to be an affirmative defense. In Bank v. Spencer, 76 N. Y 155; Bailey v. Lane, 21 How. Pr. 475; and in Kay v. Churchill, 10 Abb. N. C. 83,—the defenses stricken out as sham were affirmative ones, except in Kay v. Churchill, where a denial of a legal conclusion was stricken out. Section 152 of the old Code and section 538 of the present Code are the same in respect to sham answers. Under the present Code, (section 500,) as under the old Code, (section 149,) denials are either general or specific. The appellant contends that no case can be cited which holds that a general or specific denial may not be stricken out as sham, if shown to be false in fact, where the denial rests solely upon a want of knowledge or information sufficient to form a belief as to the truth of the allegation so controverted In Wayland v. Tysen, and in Thompson v. Railroad Co., supra, the denials sustained were upon knowledge. In Bank v. Leland, supra, the specific-denial sustained was averred upon information and belief. In Bank v. O’Rorke, 6 Hun, 18, the specific denial sustained was averred upon a want of" knowledge or information sufficient to form a belief as to the truth of the allegations referred to. These cases arose under the old Code, but the rule has not been changed by the Code of Civil Procedure. Neuberger v. Webb, 24 Hun, 347. A denial of knowledge or information sufficient to form a. belief as to the truth of an allegation is authorized by Code Civil Proc. §§ 500, 524, 526. Bennett v. Manufacturing Co., 110 N. Y. 150, 17 N. E. Rep. 669; Snyder v. White, 6 How. Pr. 321; Sherman v. Bushnell, 7 How. Pr. 171; Roby v. Hallock, 55 How. Pr. 412, 5 Abb. N. C. 86; Leach v. Boynton, 3 Abb. Pr. 1. The denial under consideration is a specific denial, and, if it raises a material issue, (it being pleaded in one of the forms prescribed by the Code,) it cannot be stricken out as sham. The note was payable to the order of the Onondaga Iron Company. It is averred in the complaint that before the note became due the payee, for value, indorsed, transferred, and delivered it to the plaintiff, which became and remains the owner thereof. The plaintiff could not recover upon this note without proving this allegation.a Edw. Bills, (3d Ed.) § 970; Abb. Tr. Ev. 403. The denial of this allegation raises a material issue, and the denial cannot be stricken out as sham. The result of the eases is that an affirmative answer or defense, which raises a material issue, maybe 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. A material issue being raised by the answer, it is not frivolous in law, and the special term correctly held that the plaintiff was not entitled to a judgment under section 537. The order is affirmed, but, the answer-having been interposed solely for the purpose of delay, the affirmance is without costs to the respondent.

Martin, J., concurs.  