Collis v. Alburtis

13 Daly 425 | New York Court of Common Pleas | 1886

Allen, J.

The appeal in this case is from an order and judgment of the City Court.

The plaintiffs moved for judgment on account of the frivolousness of the answer, and the motion was granted. Upon an appeal to the General Term of the City Court the order was affirmed ; the defendant appeals to this court from the order and from the judgment.

The action is for rent, and the plaintiff pleads a written lease, alleging its execution between the plaintiffs and the defendant; the covenant of the defendant to pay the rent named therein; the performance of the conditions of the lease by the plaintiffs, and the non-payment by defendant of the rent on the 1st day of March and the 1st day of April, 1885. The answer admits the making and execution of the lease, and states : 1st, that the defendant has no knowledge or information sufficient to form a belief as to the terms or conditions thereof; 2nd, that he has no knowledge or information sufficient to form a belief whether he covenanted to pay .the rent reserved in the lease; 3rd, that he has no knowledge or information sufficient to form a belief as to the performance by the plaintiffs of the conditions of the lease; 4th, a denial that the rent claimed to be due on April 1st was ever demanded.

Of the fourth paragraph of the answer, it may be said that it was not necessary for the plaintiffs to aver a demand for the rent, and that the allegation is immaterial, and having averred it they are not bound to prove it.

This appears to be a case of a defendant who has no defense to the action against him, and who is endeavoring, by the use of the form of words prescribed in section 500 of the Code of Civil Procedure, to delay a judgment.

It is true that a defendant who has no knowledge or information sufficient to form a belief as to a material allegation in the complaint may, in Ms answer, deny that he has any knowledge or information sufficient to form a belief, and that amounts to a traverse. But this answer admits the plaintiffs’ cause of action, pleads no defense to it, puts in issue none of the material allegations of the complaint, and does not put the plaintiff to his proof. The defendant in effect says: “ I admit I made the written agreement upon wliieh you have sued me, but I cannot recall the exact words of it.”

The answer is so palpably bad as to raise the presumption that it was interposed for the purpose of delay.

Answers of this kind have been adjudged frivolous by this court in Wesson v. Judd (1 Abb. Pr. 254), and Byrne v. Benton (3 N. Y. Monthly Law Bul. 100).

The judgment of the court below is right and is affirmed.

Larremore, Ch. J., and Bookstaver, J., concurred.

Judgment affirmed.