28 N.Y.S. 232 | N.Y. Sup. Ct. | 1894
The allegations of the answer are to the effect that the plaintiff had of the amount of the funds deposited by the maker of the note, at the time of its maturity, sufficient to pay it. If that were so, it was the duty of the plaintiff to charge up the amount of the note to-the maker, and thus satisfy it Aetna Nat. Bank. v. Fourth Nat. Bank, 46 N. Y. 82-88; Indig v. Bank, 80 N. Y. 100-106; Robarts v. Tucker, 16 Adol. & E. (N. S.) 560-578. And if the balance continued to be and was adequate to pay the note up to the time this action was commenced, that fact was then a defense available to the defendants as indorsers of the paper, assuming, as we must, that the maker was primarily liable, as between it and the defendants, to pay the note. The defendants, by their answer, therefore did set up matter which, if supported by evidence, might constitute a defense, and the note be treated as paid. Whether it was demurrable for want of allegations to the effect that the balance due the maker in its bank account with the plaintiff sufficient to satisfy the note at maturity was permitted, and did still remain there, it is unnecessary to inquire or determine for the purpose of the question here. The defendants’ answer was duly verified, and the affidavit in opposition to the motion was contradictory of that on the part of the plaintiff, and contained the statement that the answer was put in in good faith, and not for purposes of delay. In such case it is quite well settled that an answer containing matter of affirmative defense will not be stricken out as sham, but that the party alleging it is entitled to the opportunity of a trial, and to have the fact determined upon evidence in the usual manner. Webb v. Foster, 45 N. Y. Super. Ct. 311; Henderson v. Manning, 5 Civ. Proc. R. 221; Barney v. King (Sup.) 13 N. Y. Supp. 685; Rogers v. Vosburgh, 87 N. Y. 228. There may be cases where an answer or defense may be stricken out as sham. This was within the contemplation of the Code (section 538). But, as- has been elsewhere said, it is applicable to matter set up in a pleading as mere pretense, in bad faith, and without color of fact. Farnsworth v. Halstead, 18 Civ. Proc. R. 227, 10 N. Y. Supp. 763. And in Barney v. King it was held that it did not apply to matter of defense in a verified answer. The allegations of affirmative defense in the answer in the present case may be false, but that question is not triable by, or to be determined upon, conflicting affidavits, without infringing the defendants’ right to trial by jury. While the allegations in the answer tending to specifically deny the service and receipt of notice of presentment of the note and of demand and default in payment are not sufficient to put the due service of such notice in issue, the defendants do not expressly admit the service of it, nor do they admit the allegation of the complaint that the note was presented at the place where payable, and payment demanded and refused. This was an essential allegation as against the defendants. And the latter allegation at
