
    (65 Misc. Rep. 51.)
    AKTIENGESELLSCHAFT ARNOLD B. HEINE & CO. v. NEWMARK.
    (Supreme Court, Appellate Term.
    November 12, 1909.)
    Pleading (§ 359*)—Striking Out as Sham.
    An affirmative defense, duly verified, cannot be stricken out as sham, unless defendant’s own affidavits show the verified answer is false.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1120-1128; Dec. Dig. § 359.*]
    *Por other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    Appeal from City Court of New York, Special Term.
    " Action by the Aktiengesellschaft Arnold B. Heine & Co. against Solon H. Newmark. From an order striking out as sham a defense to the second cause of action in the complaint, defendant appeals.
    Reversed.
    Argued before GILDERSLEEVE, P. J., and SEABURY and. LEHMAN, JJ.
    Hutter & Eruchthandler, for appellant.
    Walter N. Seligsberg, for respondent.
   PER CURIAM.

The defendant appeals from so much of the order of the court below as strikes out the second defense contained in the answer.

The action is upon a promissory note. The defense which has been stricken out as sham pleads that the note is without consideration. An affirmative defense, when duly verified, cannot be stricken out as sham, unless the defendant’s own affidavits show that the verified answer is false.

The part of the order appealed from is reversed, with $10 costs and ■disbursements.  