
    David W. Hutchinson, Plaintiff, v. Franklin Bien, as Receiver, et al., Defendants.
    (Supreme Court, Kings Special Term,
    February, 1905.)
    Pleading — Complaint for goods sold and delivered — Frivolous answer — Motion for judgment — Immaterial allegations.
    Where in an action to recover for goods sold and delivered, the complaint alleges that purchases were made “ at various times ” between certain specified, dates, an answer denying the allegations of the complaint in gross “ as alleged therein ” is frivolous and plaintiff is entitled to judgment thereon.
    Allegations in said complaint of defendant’s repeated promises and neglect to pay for the goods, of the amount due and owing therefor, and that leave to commence the action (the defendant being a receiver) had been granted by the court, are immaterial and, therefore, raise no issue.
    Motion for judgment on an answer as frivolous.
    The three subdivisions of the complaint which the answer purports to deny are as follows:
    “ II That said defendant as such Beceiver and in order to properly administer his trust and for the benefit of said business, property and estate and the credit of said firm, duly purchased from this plaintiff at various times between January 3rd, 1900, and January 14th, 1902, goods, wares and merchandise amounting to the sum of $506.31, and that this plaintiff at the request and upon the promise and agreement of said defendant to pay for said goods, wares and merchandise amounting to said sum between said dates sold and delivered the same to said defendant.
    “ III That though said defendant has repeatedly promised to pay this plaintiff said sum, he has neglected so to do, and said sum is now due and owing plaintiff from said defendant, and no part thereof has been paid.
    
      “ IV That this plaintiff upon his application to this Court, has been duly granted the privilege and right to commence this action against said defendant.”'
    The defendant “ denies the allegations as alleged in paragraphs II, III and IV of the complaint herein.”
    David K. Case for plaintiff.
    Josiah Canter for defendant.
   Gaynor, J.:

The denial is frivolous. It is a negative pregnant. It does not deny each allegation of the designated paragraphs as required by the Code (§ 500), but only denies the allegations in gross “ as alleged ” therein. Now a denial of them “ as alleged ” therein does not deny their substance, and that is the only denial which satisfies the Code requirement. Paragraph II alleges that the purchases were “ at various times ” between certain specified dates, but if all at one time the complaint is good. Hence a restriction of the denial to the precise words and form of the complaint is not good. Such a denial is pregnant with the truth that the goods Avere purchased (Kelly v. Sammis, 25 Misc. Rep. 6; Laurie v. Duer, 30 id. 154; Pigot v. McKeever, 32 id. 45). Similar instances in this same paragraph could be pointed out. The answer is evasive. . ■

The allegations of paragraph III are not material; and also that of paragraph IV (Hirschfeld v. Kalischer, 81 Hun, 606); and hence no issue can be raised on them.

The motion is granted.  