13 How. Pr. 112 | N.Y. Sup. Ct. | 1856
Under the 149th section of the Code, as amended in 1852, the defendant may deny a material allegation in the complaint, or, in a proper case, instead of denying
The plaintiff’s counsel is mistaken when he supposes that, having stated that, in respect to the allegation in question, he has no knowledge or information sufficient to form a belief, the defendant, in order to put the allegation in issue, was required to proceed further, and deny that it is true.
In this case, the defendant, the maker of the note, has stated that he has no knowledge or information sufficient to form a belief as to the fact alleged in the complaint, that Christie, the other defendant, had indorsed the note, and transferred it to the plaintiff. This was a materia] allegation. The defendant had a right to controvert it, if he could. Whether true or not, was a matter not necessarily within his own knowledge. He had a right, therefore, instead of denying the truth of the allegation, to put its truth in issue, by asserting that he could not .say whether it was true or not, because he had no knowledge or information on the subject from which he could form a belief. He was not bound to go through with the idle ceremony of denying the truth of the allegation, after having asserted that he had no belief whatever, whether it was true or not. This issue alone is sufficient to carry the cause to the circuit. I have not, therefore, thought it necessary to examine the other parts of the answer to which the plaintiff’s counsel objects.
The motion must be denied, with costs.
