
    Joe Duke, Respondent, v. Jacob Grant and Jacob A. Rappaport, Appellants.
    Second Department,
    May 12, 1908.
    Pleading — answer — allegations not sham.
    An answer in an action against the indorsers of a promissory note containing a general denial and alleging in a second subdivision that any indorsement by defendants, if made, was without consideration cannot be stricken out as sham.
    Though the- second subdivision is hypothetical and may be stricken out, the first subdivision is not thereby vitiated; and even if the second subdivision be considered good pleading it does not admit all allegations of the complaint which plaintiff is bound to establish.
    Appeal by the defendants, Jacob Grant and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff rendered on the 29th day of August, 1907.
    
      Max Hallheimer and A. Dudley Britton, for the appellants.
    
      Morris Meyers, for the respondent.
   Jenks, J.:

This is an appeal by the defendants from a judgment of the Municipal Court. The return shows that “ Judgment for the plaintiff against defendants, verified complaint defendants appearing, and on motion their answer having been stricken out as sham.” The plaintiff complains: “I. That on the 16tli day of June, 1907, one Mount Morris Construction Company, a domestic corporation, duly made, executed and delivered to the plaintiff, for value, its negotiable promissory note, in writing, dated the said 16th day of June, 1907, and thereby promised to pay to the plaintiff, at the Union Bank of Brooklyn, Merchants Branch, the sum of §202, two months after the said date. II. That prior to the delivery of the said note, and for the purpose of lending credit to the same, and to induce the plaintiff to accept and receive the said note in payment from the said Mount Morris Construction Co., for moneys then due by said Company to the plaintiff, the said defendants Jacob Grant and Jacob A. Bappaport duly endorsed the said note, and after such endorsement by said defendants, the same was delivered to the plaintiff. III. That at maturity the said note was duly presented for payment at the place therein designated, but the same was not paid, of all of which due notice was given to the defendants, the endorsers. IY. That upon the non-payment of said note at maturity the same was duly protested by Walter D. C. Boggs, a Notary Public, at a cost of §1.50, which same is a fair and reasonable charge therefor, and that due notice of such non-payment and protest was given by said Notary Public to the defendants herein. Y. That the plaintiff has duly demanded of the defendants the payment of the said note, and that the same has not been paid. Wherefore plaintiff demands judgment against the defendants and each of them for the said sum of §203.50 — the amount of said note with protest fees — together with interest from the 16th day of August, 1907, together with the costs and disbursements of this action.” The defendants answer, with verification : “ First. Deny each and every allegation in the plaintiff’s complaint contained, except as hereinafter specifically admitted. Second. Alleges that any endorsement by the defendants of any note, such as is alleged and set forth in the plaintiff’s complaint herein, if made by the defendants, was made without any value or consideration therefor. Therefore the defendants demand that the plaintiff’s complaint be dismissed, with costs.”

The second subdivision of the complaint is vicious because it is hypothetical. (Bliss Code P1. § 317; Nichols N. Y. Pr. 845.) The remedy is by motion to strike out. (Bliss, sujpra, notes.) The first subdivision is good pleading. (Griffin v. Long Island Railroad, Co., 101 N. Y. 348; Pittenger v. S. T. Masonic Relief Assn., 15 App. Div. 26.) “ A good denial is not vitiated by adding a contingent or hypothetical avoidance of the matter already denied.” (Abb. Forms P1. 1502, citing Everitt v. Conklin, 90 N. Y. 645.) Even if the second paragraph be considered as good pleading, it certainly does not admit all allegations of the complaint which the plaintiff was bound to establish by testimony. The court could not strike out this answer as sham. (Thompson v. Erie Railway Co., 45 N. Y. 468; Wayland v. Tysen, Id. 281; Schlesinger v. Wise, 106 App. Div. 587.)

The judgment is reversed and a new trial is ordered, costs to abide the event.

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  