
    William M. Byrne, Respondent, v. Adrian T. Hegeman and Robert T. Mitchell, Appellants.
    
      Action on a promissory note—denials upon information and, belief—when not frivolous.
    
    An answer interposed in an action against the maker and indorser of a promissory note, which denies, upon information and belief, allegations contained in the complaint to the effect that, after the execution and delivery of the note to the payee, and before its maturity, the latter indorsed and transferred it to the plaintiff for value; that it was duly presented for payment, at the time and place named therein, which was refused; that the'note was protested for nonpayment and due notice thereof was given to the indorser, and that it remains wholly unpaid, should not he stricken out as frivolous.
    Appeal by the defendants, Adrian T. Hegeman and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1897, overruling the answers of the defendants as frivolous.
    
      Albert V. B. Vorhees, Jr., for the appellants.
    
      R. M. S. Putnam, for the respondent.
   O’Brien, J.:

The complaint alleges, first, that the defendant “Adrian T. Hegeman made his promissory note * * * whereby he promised to pay to the order of the defendant Robert T. Mitchell * * * and deliver the same for value; ” second, that thereafter, and before maturity, the defendant Robert T. Mitchell indorsed and transferred the said note to the plaintiff for value; third, that the said note was duly presented for payment at the time and place named therein, and payment was refused, whereupon said note was duly protested for non-payment; of all which due notice was given to the defendant Mitchell; and, fourth, that the said note remains wholly unpaid.

With the exception of some merely verbal changes, the amended answers of the defendants are substantially like the original answers; and as the former were before the court on the motion below, we may properly refer to the amended answers in determining whether or not they are frivolous.

The defendant liegeman in his amended answer denies, first, any knowledge or information sufficient to form a belief as to the allegations contained in paragraph 2d of the complaint; and in similar form he denies the allegations in the 3d and 4th paragraphs of the complaint. The defendant Mitchell uses the same form of denial with respect to the 3d and 4th paragraphs of the complaint.

Taking the provisions of the Code of Civil Procedure, section 500, which define what an answer must contain, and apart from any impressions as to these answers being interposed for delay, or as to their being sham, it is clear that they are not frivolous. By that section it is provided that the answer must contain “ a general or specific denial of each material allegation of the complaint * ' * * or of any knowledge or information thereof sufficient to form a belief.” In the form prescribed by the Code, these answers, therefore, tender the general issue as to material allegations of the complaint ; and we know of no authority which sustains the view that a general denial can he stricken out as frivolous. On the contrary, there, is ample authority for the position that an answer which denies knowledge or information sufficient to form a belief as to material allegations of the complaint is good, and cannot be treated as frivolous. (Bennett v. Leeds Mfg. Co., 110 N.Y. 150; Richter v. McMurray, 15 Abb. Pr. 346.) These and many other cases that might be cited are clearly distinguishable from the one relied upon by the learned judge below, of Queen City Bank v. Hudson (8 App. Div. 27), which was an action on a promissory note against the maker, the payee and the alleged indorser. It was therein held that the answer of the maker, as construed by the court, was not a denial of the indorsement and transfer of the note, but merely a denial that such indorsement and transfer were for value, which was held to be an immaterial averment. So it will he seen that the question there presented was entirely different from the one here under review, which is whether an answer denying knowledge or information sufficient to form a belief as to material allegations can be overruled as frivolous. We think not.

We have discussed the question as though the motion for judgment survived the service of the amended answers. We think, however, that after such service the amended answers were substituted for the original answers, and that any motion made upon the original pleadings before the service of the amended answers thereupon fell.

If the amended answers were interposed for delay or not in good faith, the plaintiff could have applied under section 542 of the Code to have them stricken out; but as the defendants amended their answers as- authorized by the section cited, if either party desired to move upon the pleadings after amendment, it was necessary that a new motion should be made.

The order being erroneous, therefore, it should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Williams, Patterson and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disburséments, and motion denied, with ten dollars costs.  