
    Barbara Gallagher, Respondent, v. Ezra F. Merrill, Appellant.
    
      Sham answer — a denial, made on information and belief, cannot be stricken out as-shewn.
    
    A denial in an answer, upon information and belief, in the form prescribed by the Code of Civil Procedure, cannot be stricken out as sham.
    The complaint in an action against a surety upon a lease, in the third paragraph,, alleged that the lessee had ‘ ‘ made default in the payment of the sum of §400, which was due for said rent on May 15, 1896;” the answer of the surety denied “ each and every allegation contained in the third and fourth paragraphs of said complaint, as he has no knowledge or information sufficient to form a belief as to the contents of the same.”
    
      Held, that the answer sufficiently denied such allegations of the complaint within the provisions of section 500 of the Code of Civil Procedure, and could not be stricken- out as sham.
    Appeal by the defendant, Ezra F. Merrill, from an order -of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the lath day of July, 1896, striking out his answer as sham and directing that judgment be entered in favor of the plaintiff.
    
      George C. Eldridge, for the appellant.
    
      J. Stewart Ross, for the respondent.
   Per Curiam :

This action is brought against the defendant to recover an installment of rent due under and by virtue of the terms of a written lease made and executed by the plaintiff as lessor and by Martha Friedrichs as lessee. The defendant is a surety upon the lease, and his covenant indorsed thereon contained,, among other things, an agreement to pay the rent secured thereby in case the said Martha Friedrichs made default in payment. The complaint alleged the making and execution of the'lease and set out plaintiff’s undertaking in connection therewith in full. By its third allegation the complaint avers “that said Martha Friedrichs has made default in the payment of the sum of $400.00, which was due for said rent on May 15, 1896.” The defendant answered the complaint, and by the third count of his answer he states : “ That he denies each and every allegation contained in the third and fourth paragraphs of said complaint, as he has no knowledge or information sufficient to form a belief as to the contents of the same.” The above-quoted allegation of the complaint was an essential and material allegation, as it was only upon the default of the said Friedrichs in the payment of the rent that liability attached to the defendant. The answer made to this allegation of the complaint constituted a denial of the same within the provisions of section 500, Code of Civil Procedure.

The question, therefore, which is presented upon this appeal is whether a denial in an answer in the form prescribed by the Code can be stricken out as sham. The authorities seem to answer the question in the negative. (Thompson v. The Erie Railroad Co., 45 N. Y. 468; Humble v. McDonough, 5 Misc. Rep. 508, and cases cited.)

It follows that the order should be reversed and motion denied, without costs.

All concurred.

Order reversed and motion denied, without costs.  