
    WEXLER et al. v. MEROVITZ et al.
    (Supreme Court, Appellate Division, Second Department.
    April 24, 1908.)
    1. Pleading—Sham Answer.
    A verified answer, setting up defenses to an action, cannot be stricken as sham.
    2. Same—Failure to Separately State and Number Defenses—Objections
    —Waiver.
    Where an action was tried on the pleadings, without requiring defendant to separately state and number his defenses, plaintiff was not entitled to have the answer stricken, and to have judgment on the pleadings.
    Appeal from Municipal Court of New York.
    Action by Nathan Wexler and another, trading under the firm name of Wexler & Bachrach, against Abraham M. Merovitz and another, trading under the firm name of A. M. Merovitz & Son. From a judgment of the Municipal Court in favor of defendants, plaintiffs appeal.
    Affirmed.
    
      Argued before WOODWARD, JENKS, HOOKER, RICH, and MIDLER, JJ.
    Benjamin Frindel, for appellants.
    Joseph A. Whitehorn, for respondents.
   WOODWARD, J.

There are two theories presented in this case. It is not disputed that the defendants originally owed the plaintiffs $400, and that they gave a note for this amount, which was subsequently reduced by payments to $150, a note for which was made and delivered. With this note outstanding and falling due on the 15th day of May, 1907, the defendants made a new note for $125, and made their check for $25, delivering the same to the note teller of the bank where both parties did business, for the purpose, as the defendants claim, of taking care of the $150 note. It subsequently appeared that the bank, in the regular course of business, paid the note-of $150,. charging the same to the account of the defendants, and the plaintiffs brought this action upon the note for $125, and no explanation is made why there was no demand for the $25 represented by the check, or any part of the same. The plaintiffs contend that at the same time there was a note of the defendants held by them for $130, and that the note in suit, with the $25 check, was made and delivered in satisfaction of this $130 note, and that the plaintiffs were to return so much of the $25 represented by the check as should remain after paying protest fees, interest, etc. The learned trial court believed the defendants' story of the transaction and gave judgment in their favor.

There was a conflict of evidence upon the real issue in the case, as to whether there was a consideration for the note in suit, and we are of opinion that the evidence justified the conclusion reached. The pleadings were verified, and could not be stricken out as sham. It is probably true that the plaintiffs might, under proper practice, have insisted on the defenses being separately stated and numbered; but no move was made in this direction, and, the case having gone to trial on the pleadings as they stood, we are clear that the plaintiff was not entitled to have the answer stricken out and to have judgment on the pleadings.

The judgment appealed from should be affirmed. •

Judgment of the Municipal Court affirmed, with costs. All concur.  