
    THE FIRST NATIONAL BANK OF CARTERET, NEW JERSEY, A CORPORATION, PLAINTIFF, v. ANNA MAE TURNER AND NELSON M. TURNER, DEFENDANTS.
    Decided January 31, 1931.
    Eor the motion, Francis A. Monaghan.
    
    
      Contra, B. Lewis Kennedy.
    
   The opinion of the court was delivered by

Case, J.

The statement of the several defenses annexed to and made part of the answer is prolix and involves many extraneous and irrelevant matters. But from it I gather the following allegations: That after maturity, to be precise on August 18th, 1930, the note sued upon, as produced for the inspection of the defendants, then bore the following, and only the following, writing on the back thereof: “Eor value received I hereby guarantee payment of principal and interest of the within note and waive protest thereon: Boynton Lumber Co., D. E. Boynton, Secretary;” that the note as now presented by plaintiff bears simply the endorsement: “Boynton Lumber Co., D. E. Boynton, Secretary;” that there has therefore been a substitution or a change since the maturity of the note changing the nature and effect of the endorsement; that in any event D. E. Boynton, secretary, is not the fiscal agent of the company with authority to endorse and that consequently the endorsement is not that of the payee; that defendants have a meritorious defense to the note as against the payee; that for reasons deducible from the above the plaintiff is not a holder in due course and that the defendants’ defense is therefore available as against it. The supporting affidavit is also prolix and argumentative, but nevertheless the above-mentioned allegations are fairly well sustained therein and they are not specifically denied by the plaintiff. I am inclind to think that such a defense should not be summarily struck on motion.

Moreover, the reason assigned by plaintiff for the motion to strike is merely the comprehensive generality that the answer is “sham and frivolous and filed for the purpose of delay.” A pleading cannot be both sham and frivolous. National Surety Co. v. Mulligan, 105 N. J. L. 336. And it should not be left to the court to critically examine a lengthy pleading to determine just where and how the attorney intended one or the other criticism to be applied.

The motion is denied, with costs.  