Macauley v. Bromell & Barkley Printing Co.

14 Abb. N. Cas. 316 | City of New York Municipal Court | 1884

McAdam, J.

The answer, “ upon information and belief, denies each and every allegation of the complaint, except the allegation of the defendant’s incorporation.” The plaintiff moves for judgment upon the ground that the answer is sham and frivolous. The answer is verified by the treasurer of the corporation, and cannot be stricken out as sham (45 N. Y., 281, 468). It is said to be frivolous because a corporation cannot deny an allegation “upon information and belief.” The case of Shearman agt. The New York Central Mills (1 Abb. Pr., 187), decided under the old Code, is relied on by the plaintiff as an authority against the sufficiency of the answer. It is said in that case that “a corporation is an artificial being which from its nature can have no knowledge or belief on any subject, independent of the knowledge or belief of its agents. It is a mere legal entity; it neither knows nor thinks.” Exactly so. But the officers and agents of the corporation must verify the answer and must, under the new Code, do so truthfully under the pain and penalty of a possible prosecution for perjury. The case cited intended to hold a corporation to the strict form of denial required (under similar circumstances) from a natural person. It did not intend to discriminate against corporations nor to require from them any different form of plea than the Code requires from individuals. Testing that case by this rule, and applying the decisions under the new Code to the form of the answer, it must be held good (See 59 How. Pr., 206; 5 Abb. N. C., 88, 90; 6 Hun, 18). Under these decisions the person verifying the pleading “ is permitted in a great measure to impress upon the pleading the operation of his mind,” that he may make the verification conscientiously. In the light of these cases the form of denial used in the answer, though “ upon information and belief,” is in accordance with the present practice and creates a triable issue of fact, which must be disposed of by a trial in the regular way. It follows that the motion for judgment must be denied. No costs.