
    Caswell and others vs. H. Bushnell, impleaded with G. W. Bushnell.
    Where a defendant, in his answer, which is sworn to, denies any knowledge or information sufficient to form a belief as to the truth of an allegation in the complaint, the plaintiff cannot, on affidavits showing that the fact alledged was within the personal knowledge of the defendant, move to strike out the answer as sham, false and frivolous.
    Previous to the code the term “ sham plea” had a precise legal meaning, applicable only to pleas of new matter; and in that known and established sense the term sham answer was used in the code.
    This was an appeal from an order of the special term,'striking out the answer of the defendant as sham, false and frivolous. The complaint, after stating that the defendant Henry Bushnell made a note payable to the order of his co-defendant, George W. Bushnell, contained an allegation that the payee indorsed and delivered the note to the plaintiff. The answer of the defendant II. Bushnell denied any knowledge or information sufficient to form a belief as to the truth of that allegation, and was verified. The plaintiff, on affidavits showing that the defendant and George W. Bushnell were partners, and that the note in suit was given to the plaintiffs, by the defendants, in settlement of a partnership debt due from them to the plaintiffs, moved to strike out the answer as sham, false and frivolous. Ho affidavits were furnished by the defendants on the motion. The motion was granted, and the defendant appealed to the general term.
    
      John Dean, for the defendant,
    cited 8 Barb. 75; 6 How. Pr. Rep. 221, 329, 355.
    
      J. E. Burrill, jr., for the plaintiffs,
    made the following points. 1. That the affidavits, uncontradicted, showed that the origin and transfer of the note were within the personal knowledge of the defendants, and that the defendant should therefore not be permitted to deny knowledge or information sufficient to form a belief in regard thereto; citing 1 Code Rep. N. S. 204, 225 ; Richardson v. Wilton, (4 Sandf. S. C. R. 708.) 2. That the power of the court to strike out as false is independent of the code. (Broome County Bank v. Lewis, 18 Wend. 566.) 3. That the objection that the court will not test the truth of an answer, on affidavits, arises in those cases where the truth of the answer is asserted by affidavit, in opposition to those on which the motion is founded. That no issue was made in the affidavits, unless the affidavits used against the answer were controverted; citing 12 Wend. 196, 223; 6 Cowen, 34; 6 How. Prac. Rep. 355. 4. That the defendant should be compelled to support his answer on the motion, by affidavit; which he had not done, as he could not now say that he had no knowledge or information sufficient to form a belief. 5. That an answer could be sham without setting up new matter. It was sham if it was false in fact; citing 3 Bandf. S. C. Rep. 732. That the rule Was different under the code from that which formerly existed, because before the code all sham pleas were necessarily special pleas ; as the general issue was never regarded as sham. But that under the code, there being no general issue, (8 Barb. 75,) all answers are special, and liable to be stricken out as sham, if false in fact.
    
   By the Court, Mitchell, J.

The defendant H. Bushnell, by his answer, substantially admits that he made the note sued on, but denies that he has any knowledge or information sufficient to form a belief that the payee indorsed and delivered it to the plaintiffs. This is a material part of the issue. The plaintiffs obtained an order at special term striking out the answer as sham, because affidavits were produced which made it very probable that the defendant did know that the payee had so indorsed it. On appeal the plaintiffs contend that a defendant must answer as to his knowledge of matters which it is to be presumed are within his knowledge. This is to overturn the privilege given him by the code, which is in the alternative, to deny the plaintiffs’ allegation, or to deny any knowledge or information thereof sufficient to form a belief.” (Code, § 149.) If a different rule has been adopted in courts other than the supreme court, it seems too clearly at variance with the law to be followed. Next it is said that the answer is a sham one, because it is to be inferred that it is false, and known to the defendant to be so. That is part, but only a part of the definition of a sham answer. It omits the essential part of the definition, viz. that the answer set up new matter. Accordingly, under the old system, the general issue, which was a mere negative, was never treated as.sham, but only those pleas which had no foundation in the facts of the case, but only in the ingenuity and imagination of the attorney. (Broome County Bank v. Lewis, 18 Wend. 566.) It was this ingenuity and invention which was the evil that was to be corrected, and which could not be alledged against a mere denial, whether of one or of all the allegations in the complaint. Ingenuity and invention can be predicated only of new matter introduced. The word sham may apply to any thing active, not to mere denial. A sham fight, in which all the action was on one side, would not be more extraordinary than a sham answer, which merely puts in issue the allegations of the plaintiff, without setting up new' matter. The term “sham plea” was well known when the code was adopted. Instances of these pleas may be found in 1 Chitty’s Pl. 575; and it has obtained a precise legal meaning, applicable only to pleas of new matter, and in that known and established sense it was used in the code. This answer was also sworn to. For that reason also, as was held at the general term of this court in Mier v. Cartledge, (8 Barb. 75,) it ought not to be regarded as sham.

[New-York General Term,

October 4, 1852.

Edwards, Mitchell and Roosevelt, Justices.]

The order appealed from is reversed, without costs.  