
    Charles H. Hyde, Adm'r, App'lt, v. George H. Kitchen et al., Ex'rs, Resp'ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    1. Pleading—Sham answer.
    An allegation in an answer by executors who have been interpleaded in an action against a bank to recover a deposit, to the effect that beyond the bank book they deny any knowledge or information sufficient to form a belief as to whether the legal representatives of their testatrix have any interest in the fund or whether the moneys belong to the plaintiff, should not be stricken out as sham, as the defendants have a right to put plaintiff to proof of his interest in the fund.
    3. Same.
    But allegations as to facts which prevented probate of the will of their testatrix and the granting of letters to them, or the reasons why a temporary^ administrator has not been able to qualify, or as to the existence of next of kin of deceased, should be stricken out as irrelevant.
    Appeal from an order denying a motion to strike out the allegations contained in the defendant’s answer.
    
      L. Karge, for appl’t;
    
      Thomas H. Cook {Joseph Fettreieh, of counsel), for resp’ts.
   Babbett, J.

The difficulty here antedates the present pleadings. It results from the interpleader order previously made, whereby the present defendants were substituted in place of the savings bank. As these defendants make no claim to the fund in question, it is difficult to preceive upon what principle they were brought into the action; but as they are here, the answer which they have interposed must be considered independently, and as though they had been made parties defendants in the first instance. The plaintiff in his complaint, amended to conform to the interpleader order, claims a certain sum of money deposited in a savings bank by one Maria Yan Yleck, “in trust for John H. Hyde." These defendants are the executors named in the will of Maria Yan Yleck, but that will has not been admitted to probate, and the defendants consequently have not received letters testamentary. In their answer the defendants make the following denial, which the plaintiff seeks to have stricken out as sham or irrelevant, namely:

“ But beyond the bank book referred to in the complaint they deny any knowledge or information sufficient to form a belief as to whether the executors or legal representatives of Maria Yan Yleck, deceased, have any interest in said fund, or whether said money belongs to the plaintiffs, or whether the plaintiffs are the owners thereof and justly entitled thereto.”

The word “book ” in the first line of this denial was omitted by a clerical error, but, as it was a clerical error, the defendants should not be prejudiced thereby. The plaintiff claims that this denial is sham, because of other statements in the answer, from which he asks us to infer that the defendants have knowledge that / the money in question belongs to him, and that he is justly entitled thereto. We do not think, however, that this denial can be stricken out as sham. Before part of an answer can be stricken out as sham, the court must be satisfied that it is false, and that it was interposed in bad faith. We do not think there is anything in the present answer, or in the affidavit upon which the motion was founded, to justify this conclusion. If the defendants are proper parties, and are entitled to defend, they have a right to ignore the allegations of the complaint as to the plaintiff’s interest in the deposit, and to put the plaintiff upon proof thereof. The qualification, “ but beyond the bank book referred to in the complaint,” may affect the sufficiency of the denial, but it does not render it sham or false. It may seem strange that persons who do not assert any right to the deposit should be permitted to question the plaintiff’s title; but that, we must assume, was considered by the court when the order of interpleader was made, and these defendants were brought into the action. Being thus in, they have a right to deny the allegations of the complaint, either specifically or by denying any knowledge .or information thereof sufficient to form a belief. What effect this may have upon the trial need not now be considered. It was sufficient for the court at special term, upon the motion to strike out, to say that, as these defendants had been brought into the action and called upon to plead, their denial of the plaintiff’s title could not be declared to be sham. That is all the court was called upon to decide, and we think its conclusion was correct

As to the other paragraphs of the answer against which the motion was aimed, a different case is made out These paragraphs set up affirmative matter, which is clearly irrelevant for the reason that it does not even tend to show a defense to the plaintiff’s claim. In one of these paragraphs the defendants narrate at some length the facts which have prevented the probate of the will and the issuing to them of letters testamentary. This is all irrelevant The material fact is that the letters have not been issued. They also set forth that proceedings for the appointment of a temporary administrator, pending a contest over the will, have been taken, but that, for certain reasons, the temporary administrator has not as yet been able to qualify. This, too, is wholly irrelevant, and has no bearing on the controversy. ■ It amounts to the defendants saying that they have no legal interest in the fund, and then telling us why, unfortunately, they have no such interest

The same observations apply with even greater force to the remaining paragraph of the answer. In this paragraph the defendants state that Maria Van Yleck left certain next of kin, who are named, and who, they allege, have, or may have, some interest or claim in the determination of the question with regard to this deposit. The defendants aver that there is a defect of parties defendant, in that these next of kin are not made parties to the action. It is quite clear that the next of kin have no legal or direct interest in the controversy, even if the estate of Maria Yan Yleck has such interest Either the plaintiff or the estate of Maria Yan Yleck is entitled to the deposit; and these executors, who have been brought in, as we must assume, to defend the estate, must limit themselves to the question which arises between themselves, as executors, and the plaintiff. It will not do for these defendants to say that they have no interest in these moneys because they have not yet received their letters testamentary, but that other people have, or may have, an interest therein dependent upon the result of the controversy over the will. The paragraph of the answer, therefore, with reference to these next of kin is clearly irrelevant, and should have been stricken out. _ So much of the order appealed from as denies the motion to strike auk as sham and irrelevant, the denial of any knowledge or information sufficient to form a belief 'as to the plaintiff’s interest in the deposit, should be affirmed, and so much of the order as denies the motion to strike out the allegations contained in the second and third paragraphs of the answer as irrelevant should be reversed, and that part of the motion granted, without costs of this appeal to either party.

Yaw Beuwt, P. J.

As the defendants can prove, under their general denial, any facts tending to show that the plaintiff has no interest in the fund, I concur.

O’Bbiew, J., concurs.  