
    METRAZ v. PEARSALL.
    
      N. Y. Supreme Court, First Department; Special Term and Chambers,
    
    
      September, 1878.
    Answer on Information and Belief not Frivolous. — Pleadings. — Code of Civ. Pro. § 537.
    Under the Code of Civil Procedure, a defendant may deny upon information and belief.
    
    An answer in the following form is proper : “Defendant answers to the complaint herein, upon information and belief, as follows: he alleges that no allegation of said complaint is true except that $100 has been paid.”
    Motion for judgment on the answer as frivolous.
    This action was brought by Fanny Metraz against Thomas W. Pearsall.
    The complaint alleges that the plaintiff performed for the defendant, at his request, certain services ; and also, at his request, furnished to the defendant certain goods of the value of $1,031.25, which the defendant agreed to pay, of which only $100 has been paid.
    The answer is literally as follows :
    
      “ The defendant answers to the amended complaint herein upon information and belief, as follows :
    “He alleges that no allegation of said complaint is true except that $100 has been paid.”
    The plaintiff: moved for judgment upon the answer as frivolous, pursuant to section 537 of the Code of Civil Procedure.
    
      John J. Macklin (Roe & Macklin, attorneys), for the motion.
    I. The answer is frivolous because it alleges upon information and belief that the allegations set forth in the complaint are not true allegations, the truth or falsity of which are in defendant’s personal knowledge (Thorn v. N. Y., &c. Mills, 10 How. Pr. 20; Lewis v. Acker, 11 Id. 163; Van Santvoord's Pleadings, 431, 432, 440, 446; Woods v. Morrell, 1 Johns. Ch. 103; Edwards v. Lent, 8 How. Pr. 28).
    II. The answer is insufficient as to form. It does not deny any allegation — at most it is merely a statement inconsistent with the allegations in the complaint (Van Santvoord’ s Pleadings, 431, 434; Powers v. Rome, &c. R. R. Co., 3 Hun, 285).
    
      Thomas G. Shearman (Shearman & Sterling, attorneys), opposed:
    I. The plaintiff: undoubtedly relies, in making this motion, upon the obiter dictum in Powers v. Rome, Wat. & Og. R. R. Co. (3 Hun, 285), to the effect that a denial upon information and belief would seem to be frivolous. But this is only an obiter dictum, and affords an excellent illustration of the danger of relying upon such loose expressions uttered by the courts without that caution and sense of responsibility which accompany a formal decision. Por a very little consideration will suffice to show that such an answer could in no case bq frivolous, and that it could only be treated as sham by a distinct method of proceeding, and upon proof or necessary presumption that the facts were within the personal knowledge of the pleader. Moreover, whatever might have been the rule under the old code of procedure, it is impossible for the court to lay down any such rule as the plaintiff here claims, in actions brought under the new code, as we shall show in our further points.
    II. Under the old or the new code the only remedy against an answer of this kind, if objectionable at all, is by a motion to strike out as sham, upon which affidavits can be used upon either side. On the present motion no affidavits can be used; and unless the court can and must entertain a conclusive presumption that all the facts alleged in the complaint are within the defendant’s personal knowledge, it cannot say that an allegation upon information and belief is objectionable. Now, it will be obvious at a glance that the complaint is drawn in a form consistent with the supposition, either that the defendant in his own proper person received the goods and agreed to pay the price, or that some agent of the defendant did so. And, in point of fact, it will never be pretended in this case that the defendant did personally receive any of these goods or make any promise to pay for them. It will be claimed on the trial that his agent did so in his absence ; and evidence in proof of that theory would be admissible in support of the complaint. But the defendant can, under these circumstances, have no personal knowledge as to whether his agent did or did not receive these goods and promise to pay for them. It is, therefore, impossible for him to plead to any part of the complaint upon his own knowledge ; and this being not only conceivably but actually the case, as would appear if the matter could be tested by affidavits, the court cannot have that judicial notice of the facts which is necessary in order to deal with a pleading where no affidavits are used.
    III. But there is a further and more fundamental difficulty in the way of making an objection, like this, the basis of a motion for judgment on the answer as frivolous. The question whether the pleading is true or not, or whether it is pleaded in good faith or not, cannot be raised on a motion of this kind. No matter how wildly improbable it may be, that is of no importance. The only question at issue is whether, if true, the answer presents a legal bar to the complaint. Now if, as is here alleged, no allegation of the complaint is true, it is not of the slightest importance whether the defendant knows this or only believes it, or even if he does not believe it. If the complaint is untrue, the plaintiff is not entitled to recover, even though the defendant believed every word of it to be true. And the real explanation of the obiter dictum on which the plaintiff relies, is that the court confounded a denial “upon information and belief” with a denial “of information and belief.” When a defendant denies that he has any knowledge or information sufficient to form a belief concerning the allegations of the complaint, he uses a peculiar and strictly statutory form of issue, which he is therefore obliged to follow very closely; otherwise he easily runs into an immaterial issue. For it is not of the slightest legal importance whether he has any knowledge or belief on the subject. The real issue is “is the complaint true?” Now, in what are often erroneously called “denials upon information and belief,” the defendant denies that he has knowledge, or that he has information, or that he has a belief, as to whether the complaint is true, but none of these questions are really material; and while the statute makes an issue upon these points good, when tendered in a particular form, nothing except that exact form will suffice. But when, as in this case, the defendant distinctly avers that no allegation of the complaint is true, he has the right to do that upon knowledge, or upon information, or upon belief without information.
    IV. Under the new code of civil procedure the question. is entirely, clear. By section 526 the defendant is made liable to conviction for perjury if he fails to allege distinctly, in the answer, how much of it is stated on mere belief as distinguished from personal knowledge. In the present case the defendant could not by any possibility know personally that his agent or agents have not made the contract alleged in the complaint. He can have nothing but information and belief on the subject. If then the court will not allow him to allege in his pleading, upon information and belief, that the complaint is untrue, it shuts him up to the alternative of submitting to pay a claim entirely unfounded, or of committing perjury and suffering its penalty.
    V. It will hardly be said in answer to this argument that because the complaint and form alleges “that the defendant agreed to pay” the defendant ought, therefore, to have assumed that his personal act alone was intended, and should thereupon have made a denial as of his own knowledge. If the defendant had done so with a full understanding that the real meaning of the complaint was that his agent, and not himself, had made'the promise, he would have made but a sorry figure upon the trial of the cause. The court will no more compel parties to equivocate than it will compel them to commit perjury.
    VI. This motion has been already disposed of in principle, by a decision made last winter in this court in the case of Stent v. Continental National Bank,
      where the answer was in precisely the same form. The same motion was made and it was denied with costs.
    
      
       To similar effect, see Maclay v. Sands, 94 U. S. (4 Otto) 586, — a case which arose under the Montana code.
      Where the complaint alleges only a part of the entire contract, defendant may deny, and under denial prove the entire contract. Marsh v. Dodge, 66 N. Y. 533; rev’g 4 Hun, 278; S. C., 6 Sup'm Ct. (T. & C.) 568.
      An inconsistent allegation is not alone a sufficient denial. Marston O. Sweet, 66 N. T. 206; rev’g 4 Hun, 156.
      See also, as to the effect of various denials, Meehan v. Harlem Savings Bank, 5 Hun, 439, 440 (compare 58 N. Y. 491); Townshend v. Townshend, 1 Abb. New Cas. 81, 84; Church of Redemption v. Grace Church, 6 Hun, 166, 174; Powers v. French, 1 Id. 582, 583; Manning v. Winter, 7 Id. 482, 484; Miller v. Ins. Co. of North America, 1 Abb. New Cas. 470, 472, and cases cited.
    
    
      
       The propriety of this form of denial depends on the statute, and on the old usages of equity pleading to meet a bill for discovery. Hence, such a denial is not sufficient as evidence in an affidavit, nor in proceedings where the statute and equity principle do not apply, as in case of proceedings on mandamus and the like.
    
    
      
       See page 88, ante.
      
    
   Westbrook, J., denied the motion, without costs, and the usual order was entered.  