
    Strong and Smith v. Stevens.
    An answer to a complaint for money lent, which states that defendant gave his check to the plaintiffs for the sum lent, and interest to the time it was given, and that the plaintiffs have not returned it, and that it is still outstanding, but which does not aver that plaintiffs have negotiated it to a third person who holds, or owns it, does not state facts sufficient to constitute a defence. Upon a given state of facts, the law pronounces the same judgment since, that it did prior to the Code. An answer stating only such facts, as under the former system, if set out in a special plea, would have made'the latter bad on general demurrer, according to decisions determining the precise question, is frivolous.
    (Before Oakley, Ch. J., Duek, Campbell, Boswobth and Slosson, J.J.)
    June 25, 1855.
    This case came before tbe court, on an appeal by tbe defendant from a judgment, ordered in favor of tbe plaintiffs, under § 247 of tbe Code, on account of tbe frivolousness of tbe answer. Tbe complaint stated a loan made by plaintiffs to defendant, of $7667⅞⅜, for wbicb sum and interest it prayed judgment.
    Tbe answer alleged tbat a loan of $750 was made on tbe 7tb of August, 1853, and on tbe 30tb of November, 1854, tbe interest' wbicb bad accrued was computed and ascertained to be, including principal, $766⅞, (tbis being tbe identical claim mentioned in tbe complaint,) “and tbe said defendant, at tbe request of tbe plaintiffs, gave and paid to bim, tberefor, a check or bill of exchange drawn by tbe defendant upon tbe Bank of America, in tbe city of New York, for tbe last mentioned sum, wbicb tbe said plaintiffs have not returned or given up to tbe defendant, and tbe same is still outstanding, and tbe defendant therefore denies tbat be is indebted to tbe plaintiffs as alleged in the said complaint.”
    On tbe motion for judgment,-on account of tbe frivolousness of tbe answer, tbe check was produced and offered to tbe defendants to be cancelled.
    
      Willett and Stephens for plaintiffs.
    
      M D. Smith for defendant.
   By the Court.

Bosworth, J.

The fact that the defendant gave his check to the plaintiffs for the amount owing to them, on account of a loan previously made, is no bar to an action to recover for the money lent. The plaintiffs cannot recover without producing the check, on the trial, to be cancelled. If they do that, they may recover. Unless, therefore, the answer, in addition to stating that such a check was given, alleges other facts showing affirmatively, that it is out of the possession and control of the plaintiffs, it does no.t state enough to make a perfect defence.

This was expressly decided in Burdick v. Green, (15 J. R. 247,) and substantially reaffirmed in Hughes v. Wheeler, (8 Cowen, 77.)

As a matter of evidence, it would probably be sufficient to prove the giving and acceptance of defendant’s check, or negotiable note, for the amount of the original consideration. If the plaintiffs then failed to produce the check, or to prove that it was lost or casually destroyed while they owned it, a jury might properly find that the plaintiffs had parted with their property in, and control over it. An answer that the plaintiffs had endorsed and delivered it to a third person, who continued to possess and own it, would be supported by such evidence.

The conclusions of law, upon any given state of facts, are the same now as they were before the Code.

We see no grounds for now holding an answer to be good in substance, which merely states such facts, as if contained in a special plea in bar, would make a plea which, under the old system, would have been held bad on general demurrer. A plea containing the facts stated in this answer, would be held bad, not as amounting to the general issue, but because they are insufficient to show the plaintiff has no right to recover. The order appealed from must be affirmed, with costs.  