
    Walter R. Jones, Plaintiff, v. George Brown, Defendant.
    (Supreme Court, New York Special Term,
    November, 1899.)
    1. Action on a note — Denial, that it was indorsed to the plaintiff, is not frivolous.
    A denial by the maker of a note of an allegation of a complaint thereon, that the note was indorsed and transferred to the plaintiff, is not frivolous, as the plaintiff must make this proof in order to recover.
    
      2. Same — Agreement not to sue is not presented by an allegation of a want of consideration.
    
      Semble, that the defense, that the payee agreed not to sue until a certain event, is not presented by an allegation of the answer to the effect that the note had no consideration in its inception and was made for accommodation. Such an allegation should be struck out as frivolous where it appears that the note was given for value.
    Motion to strike out the allegations of the answer denying consideration and alleging that it was given for accommodation.
    Henry L. Maxson, for motion.
    David W. Rochmovitz, opposed.
   Scott, J.

This is an action upon a promissory note made by defendant to the order of the De Forest & Hotchkiss Company, and by them indorsed to plaintiff. The defendant admits the making of the note, but denies that it was made for value received or for any legal or valuable consideration. He denies that it was presented for payment at maturity and payment demanded and refused. He denies the indorsement and transfer to the plaintiff and his present ownership, but makes no allegation as to ownership or possession of the note by anyone else. And he finally alleges that the note was made by defendant and delivered to plaintiff as and for the accommodation of plaintiff’s assignor, the De Forest & Hotchkiss Company, without consideration and without value received. The plaintiff now moves to strike out the allegations of the answer denying consideration for the note, and alleging that it was given for the accommodation of plaintiff’s assignor, and, if so much of his motion be granted, that he have judgment by reason of the frivolousness of the answer. To prove the falsity of those portions of the answer sought to be stricken out as sham, the plaintiff produces an affidavit of the treasurer of the De Forest & Hotchkiss Company, showing that the note in suit was given in payment for merchandise sold to defendant, and giving a copy of a letter written by defendant acknowledging his liability on the note. The defendant submits an affidavit in which he does not deny that the note was given in part payment of merchandise furnished him. He says that the note was alleged in the answer to have been given for the accommodation of the plaintiff’s assignor, because, after the making of the nóte, an agreement was entered into between himself and certain of his creditors, including plaintiff’s assignor, whereby he agreed to assign a certain claim to a trustee for said creditors, and the creditors agreed not to institute any suits upon their claims against defendant until the trustee should have prosecuted the assigned claim to judgment The agreement itself, a copy of which is annexed to defendant’s affidavit, recites his indebtedness to plaintiff’s assignor. It is apparent that neither the defendant’s affidavit nor the agreement referred to in it sustains his allegations that the note was made without consideration and merely for the accommodation of the plaintiff’s assignor. On the contrary, the only inference to be drawn from them is that the note was given for a valuable consideration. If the defendant could successfully interpose the agreement not to sue as a defense to an action upon the note, he does not lay the foundation to do so by denying consideration for the note at its inception. The answer must be dealt with as he has seen fit to frame it, and being so dealt with, the portions above referred to are clearly sham and must be stricken out. So far as regards the motion for judgment upon the answer as frivolous after the sham portions have been stricken out, it must be denied. The third paragraph of the complaint alleges the transfer to- and ownership of the- note by the plaintiff. These are material allegations which the plaintiff must prove in order to recover. They are explicitly denied by the defendant. Such a denial cannot be regarded as frivolous. Taylor v. Smith, 8 N. Y. Supp. 519; Queen City Bank v. Hudson, 8 App. Div. 27. The motion must be granted so far as regards striking out the specified portions of the answer as sham, and must be denied so far as it asks for judgment upon the answer as frivolous. Ho costs to either party.

Ordered accordingly.  