
    KAMLAH a. SALTER.
    
      New York Common Pleas; General Term,
    April, 1858.
    Pleading.—Promissory FTote.—Frivolous Denial.
    In the New York Common Pleas, in an action against the maker of a promissory note, payable to his own order, his answer will be held frivolous if it merely denies that he ever indorsed, or delivered, or in any way transferred the note to the plaintiff, and alleges that the defendant has no knowledge or information sufficient to form a belief whether the note was ever delivered to the plaintiff, or in any way transferred to him by any one.*
    * It seems that the'rule is different in the Supreme Court and in the New York Superior Court. The weight of authority is, that the answer is not frivolous if it denies whatever allegations the complaint employs to show title in the plaintiff. (Temple a. Murray, 5 How. Pr. R., 329; Metropolitan Bank a. Lord, 1 Abbotfs' Pr. R., 186 ; Sherman a. Bushnell, 7. How. Pr. R., 171; Flood a. Reynolds, 13 lb., 112 ; Hecker a. Mitchell, 5 Ante, 453; and compare Marshall a. Rockwood, 12 How. Pr. R., 452; Holstein a. Rice, 15 lb., 1; Witherspoon a. Vandolar, 16 16., 266 ; and Wirgman a. Hicks, Ante 17.)
    Appeal from order granting judgment on account of the frivolousness of the answer.
    The complaint alleged that the defendants made a promissory note, payable to their own order, describing it, “ and thereupon indorsed and delivered the same to the plaintiffs.” After alleging non-payment, the plaintiffs further alleged that they were .the lawful owners and holders of the note. The amended answer interposed by the defendants was as follows :
    “ That they deny that the defendants in this action, by their firm-name or otherwise, ever indorsed to the plaintiffs the promissory note mentioned and described in the said complaint.”
    “ And they, further answering, deny that the defendants in this action ever delivered to the plaintiffs, or in any way transferred to them, the said promissory note.”
    “ And they, further answering, say that they have no knowledge nor information sufficient to form a belief whether or not the said promissory note was ever delivered to the plaintiffs, or transferred to them in any way by any one.”
    “ And they, further answering, say that they have no knowledge nor information sufficient to form a belief whether or not the plaintiffs are the lawful owners or holders of the said promissory note.”
    The plaintiffs moved for judgment for frivolousness of the answer, and the motion being granted, the defendants appealed.
    
      Wm. Henry Forman, for appellants.
    
      James N. Platt, opposed.
   By the Court.—Brady, J.

The plaintiffs allege that the defendants indorsed and delivered to them the note in suit. The defendants deny that they indorsed and delivered it to the plaintiffs. The note is payable to their own order. They do not deny that they indorsed the note, nor do they set up any matter assailing the plaintiffs’ possession of the note. When a note is payable to the order of the maker, and indorsed by him, in legal effect it is indorsed to any person who may hold it; and the denial of the mere indorsement or delivery to the holder, is not the denial of a material averment. It may be assumed ■that the thing thus denied is not literally true, and yet the defendants would be liable. The mere possession of the note is sufficient to put the defendants to their defence, if any they have ; and as they have not denied any of the facts by which", possession could lawfully be acquired, they do not present any defence to the action.

The order at the special term must be affirmed, with $10 costs.. 
      
       Present, Daly, P. J., Brady and Hilton, JJ.
     