
    (7 Misc. Rep. 244.)
    MARTENS v. BURTON CO.
    (City Court of New York, General Term.
    February 8, 1894.)
    Pleading—Striking Out Answer as Sham.
    An answer which denies an allegation of the complaint that the note sued on was indorsed and delivered by the payee denies a material fact, and will not be stricken out as sham.
    
      Appeal from special term.
    Action by William H. Martens against the Burton Company. From an order striking out the answer as sham, defendant appeals. Reversed.
    Argued before EHRLICH, C. J., and VAN WYCK and FITZSIMONS, JJ.
    R. McC. Robinson, for appellant.
    C. F. Holm, for respondent.
   VAN" WYCK, J.

The complaint alleges the making and delivery by defendant of its promissory note to the order of J. J. Robinson & Co., its indorsement by said Robinson & Co. and by one Kane, and its delivery thereafter to plaintiff. The answer, among other denials, denies its indorsement and delivery by J. J. Robinson & Co., the payees. This is a denial of a material allegation of the complaint, and would force proof by plaintiff that the payees had indorsed the note. Assuming, but net conceding, that upon proof by affidavit that the note was duly indorsed by the payees the answer could be stricken out as sham, yet, as the record does not show that any such proof was made on this motion, the order striking out this answer as sham must be reversed, with $10 costs. All concur.  