
    Morris Cohen, Respondent, v. Max Wolff, Appellant.
    (Supreme Court, Appellate Term, First Department,
    March, 1915.)
    Pleading — action by assignee of corporation upon claim for goods sold — when proof insufficient to establish plaintiff’s ownership — allegation of assignment of claim — denial.
    Where in an action by the alleged assignee oí a corporation upon a claim for goods sold it does not appear that the person who executed the assignment was an officer of the corporation or in any way authorized to execute the assignment which was not proved to have been in existence when the action was begun, the proof is insufficient to establish plaintiff’s ownership there being nothing in the evidence which would estop the corporation from bringing suit on the claim.
    Where paragraph third of the complaint contains the single allegation of the assignment of the claim, a denial in the answer of any knowledge or information sufficient to form a belief as to said paragraph is sufficient to require plaintiff to prove the assignment.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, in favor of the plaintiff.
    Albert Erdman, for appellant.
    Bernard Braun, for respondent.
   Guy, J.

The suit was brought by an alleged assignee of Cowen’s, Inc., a domestic corporation, upon a claim for goods sold and delivered.

On the trial plaintiff’s counsel, for the purpose of proving the assignment pleaded, asked the witness Cowen if he had assigned on behalf of the corporation the claim against the defendant, to which he answered, “Yes.” This witness subsequently said that the assignment was in writing, but the writing was not produced, and although it is stated at the end of the stenographer’s minutes of the trial that subsequently the assignment in question was mailed to the court and put among the papers ” no such paper is included in the return. It does not appear that Cowen, who said he executed the assignment, was an officer of the cor-' poration or in any way authorized to execute the assignment, and it was not proved that the assignment was in existence at the time of the beginning of the action. When asked when the assignment was made the same witness said: I think it was about sometime in November, about the day prior to the commencement of the action.” The proof was insufficient to establish ownership in the plaintiff at the time of the commencement of the action. Liberty W. P. Co. v. Stoner W. P. Mfg. Co., 178 N. Y. 219. There is nothing in the return which would estop Cowen’s, Inc., from suing the defendant on the claim. Bernstein v. Horth, 85 N. Y. Supp. 263.

It is contended on the appeal, however, that the answer did not deny the assignment and therefore the fact as alleged was admitted. Paragraph third of the complaint contains the single allegation of the assignment. The defendant “ answering the complaint ” denied, among other things, that he had “ any knowledge or information sufficient to form a belief as to the paragraph marked third.” ■ While the form of denial is loose and inartificial and is not to be commended, it seems to me that in view of the single, definite allegation of paragraph third the denial was sufficient to require the plaintiff to prove the assignment. This was apparently the view taken by plaintiff’s counsel at the trial; as far as appears he never challenged the sufficiency of the denial. In Bidwell v. Overton, 13 N. Y. Supp. 274, cited by the respondent, the pleader merely averred that he had not knowledge or information sufficient to form a belief as to a specified paragraph of the complaint. Here the defendant denies that he has any knowledge or information sufficient to form a belief as to the paragraph in question.

Pendleton and Shearn, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  