
    William H. Martens, Respondent, v. The Burton Co., Appellant.
    (City Court of New York—General Term,
    February, 1894.)
    An answer in an action upon a promissory note, brought by a transferee' thereof, which denies the allegations of the complaint as to the indorsement and delivery of the note by the payee, should not be stricken out as sham, especially where no proof is made by affidavit of such indorsement and delivery.
    Appeal by defendant from order striking out. its answer as sham.
    
      R. McG. Robmson, for appellant.
    
      G. F. Holm, for respondent.
   Van Wyck, J.

The complaint alleges the making and delivery by defendant of its promissory note to the order of J. J. Eobinson & Co., its indorsement by said Eobinson & Co. and by one Kane, and its delivery thereafter to plaintiff. The answer, among other denials, denies its indorsement and delivery by J. J. Eobinson & Co., the payees. This is a denial of a material allegation of the complaint and would force proof by plaintiff that the payees had indorsed the note.. Assuming, but not conceding, that upon proof by. affidavit that the note was duly indorsed by the payees the answer could be stricken out as sham, yet as the record does not show that any such proof was made on this motion the order striking out this answer as sham must be reversed, with ten dollars costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.

Order reversed, with ten dollars costs.  