
    ADOLPH WITTEMANN, RESPONDENT, v. LOUIS A. GIELE AND JOHN J. O’LEARY, APPELLANTS.
    Argued December 4, 1923
    Decided March 3, 1924.
    1. Striking out a sham or frivolous plea is not an infringement of the right of trial by jury.
    2. The finding of the judge, upon such a motion, that the defendant failed to show such facts as he deemed sufficient to entitle him to defend, must be assumed to be true until the contrary appears.
    On. appeal from the Supreme Court.
    For the respondent, Collins & Corbin.
    
    For the appellants, Weinberger & Weinberger.
    
   The opinion of the court was delivered by

Campbell, J.

This is an appeal from a summary judgment.

The action is founded upon six promissory notes made by the Wittemann Aircraft Corporation, payable to the plaintiff, or order, all of which were endorsed by the defendant Giele, and four of which were endorsed by the defendant O’Leary.

This suit was against the endorsers. The defense was that defendants were accommodation endorsers for the plaintiff, at his request and without consideration.

Plaintiff moved to strike out the answers upon the ground that they were sham and frivolous. They could not be both. The order striking them out recites that the notice was to strike out on the ground that they were sham or frivolous, but did not adjudge that they were either. From the testimony in the cause it may reasonably be assumed that the answers were struck out as untrue or sham.

The defendants’ appeal and their contention is that the Supreme Court erred in ordering that the answers be stricken out and summary judgment entered because the questions involved, being questions of fact, the defendants were entitled to have them submitted to and passed upon by a jury.

The complete answer, making defendants’ contention untenable, is to be found in the opinion of this court in Eisele & King v. Raphael, 90 N. J. L. 219.

The finding of the judge making the order to strike out must be assumed to be true until the contrary appears. The contrary does not appear in this case and the finding must, therefore, be taken as correct.

The judgment below is affirmed, with costs.

Bor affirmance — The Chancellor, Chief Justice, Trenchard, Kalisci-i, Campbell, Katzenbach, Gardner, Van Buskirk, Clark, JJ. 9.

For reversal — Parker, J. 1.  