
    CITY COURT OF NEW YORK.
    Joseph M. Deuel, plaintiff, agt. Alanson G. Sanford, defendant.
    
      Complaint upon promissory note—Answer—When not to be stricken out as sham, or frivolous.
    
    Where the complaint was upon a promissory note, and alleged that it was -“made by defendant .to his own order for value, and was indorsed and .delivered to one T., and that T. indorsed and delivered the same before -maturity to D., as plaintiff is informed and verily believes, who thereafter and before maturity sold and delivered the same to plaintiff.’’ And the answer was a denial that the defendant made, indorsed and delivered the note as alleged in the complaint to T. for value, and of any knowledge or information sufficient to form a belief of the allegations of the complaint that said T. before maturity or at any time indorsed and delivered the said note to D.,or that D. sold and delivered the same to plaintiff:
    
      Held, that the issues raised by the answer are material and the denials cannot be stricken out as sham. The frivolous character of the answer must be apparent without argument to make it frivolous.
    
      Special Term, June, 1884.
   Hyatt, J.

Motion to strike out answer as frivolous and sham. The complaint alleges the making of a promissory note by the defendant to his own order for value received, and its indorsement and delivery to one Tufts; also that said Tufts indorsed and delivered the same before maturity to James MlDeuel, as plaintiff is informed and verily believes, who there-after and before maturity sold and delivered- the same to plaintiff.

The first and second denials are practically the same;-.a--, denial that the defendant made; indorsed, and delivered the note as alleged in the complaint to George A. Tufts for value..

The fourth and fifth denials are “of any knowledge or.information sufficient to form a belief of the allegations of the complaint, that said Tufts before maturity or at any other:-time indorsed and delivered the said note to James M. Deuel,” and likewise, that said “ James M. Deuel sold and delivered. the same to=the plaintiff.”

The issues raised by the answer are material (Snyder agt. White, 6 How. Pr. R., 321; Sherman agt. Bushnell, 7 How. Pr. R., 171; Roby agt. Hallock, 55 How. Pr. R., 412). The denials cannot be stricken out as sham (Wyland agt. Tysen; and Thompson agt. Erie R. R. Co., 45 N. Y., 281, 468). The plaintiffs argument to demonstratethe answer to be frivolous, precludes him from establishing, that claim; its frivolous character must be apparent without argument to-make it frivolous.

Motion denied, with ten dollars costs to the defendant to abide the event.  