
    WALSH v. BARRETT.
    (Supreme Court, Appellate Division, First Department.
    January 3, 1913.)
    1. Pleading (§ 129)—Answer—Admissions.
    A paragraph of the complaint, alleging that on a certain date defendant was the president of an express company, not denied by the answer, is thereby admitted.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 270-275; Dec. Dig. § 129.*]
    
      2. Pleading (§ 121)—Answer—Denial of Knowledge or Information.
    Under Code Giv. Proc. § 500, requiring the answer to contain a general or special denial of each controverted material allegation of the. complaint, or a denial of any knowledge or information thereof sufficient to form a belief, the president of an express company, sued for injuries to plaintiff by one of its trucks, may deny any knowledge or information sufficient to form a belief as to whether the truck which struck plaintiff was owned by the company, was being driven in a given direction on a street named, and was under the management of the company and its servants, and he cannot be ordered to make a more specific denial.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 245-248; Dec. Dig. § 121.*]
    Appeal from Special Term, New York County.
    Action by William Walsh against William M. Barrett, as president of the Adams Express Company. Erom an order requiring defendant to make its answer more definite and certain, defendant appeals.
    Reversed.
    Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.
    Everett, Clarke & Benedict, of New York City (C. W. Wicker sham, of New York City, of counsel), for appellant.
    Joseph J. Baker, of New York City, for respondent. .
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   CLARKE, J.

Plaintiff brings this action to recover damages for being negligently run down by one of defendant's trucks. The amended complaint in paragraph 6 alleges:

“That on said 16th day of December, 1911, the said Adams Express Company, of which the said William M. Barrett was and is the president, was the owner of the certain automobile truck which, at the time the plaintiff sustained the injuries hereinafter alleged, was being driven in a northerly direction along said Fifth avenue, and under the control, management, and direction of said Adams Express Company, its servants, agents, and employes, and which said automobile truck struck plaintiff.”

The amended answer verified by William M. Barrett, alleges:

“Second. Denies that he had any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in articles 5 and 6 of the amended complaint.”

The order appealed from requires the defendant to—

“separately deny or admit the following allegations of paragraph 6 of the amended complaint in this action: (1) That on December 16, 1911, William M. Barrett was the president of the Adams Express Company.”

The second paragraph of the amended complaint alleges that fact, and, not being denied in the answer, is therefore admitted. It is idle to ask the defendant to deny or admit it again. Further, in the sixth paragraph of the complaint it is merely a descriptive clause.

The order further requires the defendant to admit or deny:

“(2) That on December 16, 1911, the Adams Express Company was the owner of the certain automobile truck which struck the plaintiff. (3) That" the said truck, at the time it struck the plaintiff, was being driven in a -northerly direction along Fifth avenue. (4) That at the time it was under the control and management of the Adams Express Company, its servants, agents, and employes.”

It further provided that the second clause of the answer should be stricken out.

The effect of this order is to deny to, the defendant the right to interpose an answer in the precise form allowed by section 500 of the '■Code of Civil Procedure. Such provision is appropriate to the case at ¡bar, because it is unreasonable to require the president of such a company as the defendant, with a large number of servants operating and -controlling many vehicles, to swear specifically one way or the other -as to such details of the plaintiff’s cause of action.

■ Kirschbaum v. Eschmann, 205 N. Y. 127, 98 N. E. 328, cited by respondent, does not apply. In that case there were corporate acts ¡having to do with the passage of resolutions, the issuing of notes, the .execution of underwritings, and the making of written agreements •which were presumptively within the knowledge of the corporation -and its officers, because executed and acted upon by them. Here, on -the contrary, is a negligence case, and the defendant is called upon rto answer or deny whether a truck was going in a particular direction, . on a particular street, at a particular time. It seems to me that no : such pleading can be required. The rule which has been applied when ;a man .-denies that he has any knowledge or information sufficient to form a belief as to his own residence (Olsen v. Singer Mfg. Co., 143 App. Div. 142, 127 N. Y. Supp. 697), or as to papers on file in public offices (Rochkind v. Perlman, 123 App. Div. 808, 108 N. Y. Supp. 224, 1151), has no application.

The order' appealed from should be reversed, with $10 costs and ¡disbursements, and the motion denied, with $10 costs to the appellant. All concur.  