5 N.Y.S. 457 | N.Y. Sup. Ct. | 1889
Appeal from an order of the special term, denying plaintiff’s motion for judgment on the grounds (1) that the respondent’s answer is sham, (Code Civil Proc. § 538;) (2) that it is frivolous, (Id. § 537.) The action is brought by the indorsee of a promissory note, payable to order, against the maker, Horace Inman, and the indorser, the Onondaga Iron Company. The maker alone defends. The complaint is in the ordinary form in an action by an indorsee against the maker and indorser of a promissory note, transferred for value before due. The answer contains simply a denial of any knowledge or information sufficient to form a belief as to the truth of the allegations of indorsement and ownership set forth in the complaint. The pleadings are verified.
The affidavits upon which this motion was heard show beyond question that the answer is sham; in fact, was interposed in bad faith, and solely for the purpose of delay. The Code of Civil Procedure provides: “Sec. 538. A sham answer or a sham defense may be stricken out by the court, upon motion, and upon such terms as the court deems just. ” This Code does not define the terms “sham answer” or “sham defense,” neither did the old Code. But the court of appeals has held that “sham answer” and “false answer” are synonymous terms. People v. McCumber, 18 N. Y. 315, 321; Thompson v. Railroad Co., 45 N. Y. 468, 471; Fettretch v. McKay, 47 N. Y. 426. Under this section and the above cases, it has been many times forcibly argued that when a plaintiff shows beyond doubt that an answer or defense, negative or affirmative, is clearly false in fact it may be stricken out; and it was so held in People v McCumber, 27 Barb. 632, affirmed 18 N. Y. 315, where a “specific denial” was stricken from a verified answer. The power was asserted and exercised in Walker v. Hewitt, 11 How. Pr. 395, and in Bank v. Pryor, 11 Abb. Pr. (N. S.) 227. Whether general or specific denials can be stricken out as sham, under statutory provisions similar to the section above quoted, is a question upon which the courts of other states do not agree. Bliss, Code Pl. § 422. Before the Codes, the remedy of striking out a plea as sham or false was confined to such as set up new matter, and was not applicable to pleas which interposed the general issue as a defense. Wood v. Sutton, 12 Wend. 235; Bank v. Lewis, 18 Wend. 565, 567; Bank v. Smith, 15 How. Pr. 329, 331; Wayland v. Tysen, 45 N. Y. 281; Grah. Pr. (2d Ed.) 251. Such was the rule, even though the plaintiff was able to establish by affidavits, beyond question, that the plea was false in fact. PTotwithstanding the fact that the old Code was designed to compel litigants to truthfully plead, it wras held, following the old rule, that a “generaldenial” could not be stricken out as sham, though shown to be false in fact, (Wayland v. Tysen, 45 N. Y. 281;) and also that a “specific denial” could not be stricken out as sham, though shown'to be false in fact. Thompson v. Railroad Co., 45 N. Y. 468; Bank v. Leland, 50 N. Y. 673; Claflin v. Jaroslauski, 64 Barb. 463; Bank v. Smith, 15 How. Pr. 329. Kay v. Whitaker, 44 N. Y. 565, does not conflict with Wayland v. Tysen and kindred eases above cited. The defense stricken out as sham in that ease was payment, which has always been held to be an affirmative defense. In Bank v. Spencer, 76 N. Y 155; Bailey v. Lane, 21 How. Pr. 475; and in Kay v. Churchill, 10 Abb. N. C. 83,—the defenses stricken out as sham were affirmative ones, except in Kay v. Churchill, where a denial of a legal conclusion was stricken out. Section 152 of the old Code and section 538 of the present Code are the same in respect to sham answers. Under the present Code, (section 500,) as under the old Code, (section 149,) denials are either general or specific. The appellant contends that no case can be cited which holds that a general or specific denial may not be stricken out as sham, if shown to be false in fact, where the denial rests solely upon a want of knowledge or information sufficient to form a belief as to the truth of the allegation so controverted In
Martin, J., concurs.
