Lawrence v. Derby, 24 How. Pr. 133

Lawrence v. Derby

24 How. Pr. 133 | The Superior Court of New York City | 1862

Robertson, J.

The complaint alleges that the writ, by virtue of which the plaintiff was arrested, was caused to be issued by the defendants. The answer alleges that they have no knowledge or information sufficient to form a belief of the allegations of the complaint not therein admit*134ted, or of either or any of them. The defendants must know whether they caused the writ to be issued. If their intervention be such as to render it doubtful whether it was causing the writ to be issued, they can state what they did, and deny that they in any other way caused it to be issued. If the facts stated show they did not cause it, a demurrer would determine it in their favor, or they would have the benefit of them, if denied and proved on the trial.

Gunning S. Bedford, Jr., for motion. Lyon & Porter, opposed.

There is no such pleading as a general issue under the present system. A party is bound to verify his pleading, and if he does so, and any of his allegations are untrue, the plaintiff has a right to strike out his pleading as sham. (The People agt. McCumber, 18 N. Y. R., 323.) This overrules all previous decisions to the contrary. The complaint is sworn to ; there is nothing in the answer to contradict it, except the oath of one defendant, that none of them know anything about it. No additional affidavit is necessary. It is apparent, by the admission on the face of the answer, that it is sham or false.

It is not sufficient to strike out the ignoring of the allegation as- to issuing the writ and leave the rest to stand, because there would be no defence left.

The answer must be stricken out as sham, with $10 costs to the plaintiff, with liberty to the defendants, within ten days, on filing and serving an affidavit of merits, to put in a new answer on stipulating to allow the date of issue to remain as it now is, and take short notice of trial.