Taylor v. Smith

8 N.Y.S. 519 | N.Y. Sup. Ct. | 1890

Daniels, J.

The action was brought against the makers and indorsers of a promissory note. The answer admitted the making and delivery of the n*ate, that it had not been paid, and that it was protested for non-payment; and it then contained a denial, on information and belief, of each and every allegation in the complaint not theretofore admitted. The allegations not in this manner admitted were that the payee in the note had sold, transferred, and indorsed it to-the plaintiff, who thereby became the lawful owner and holder thereof. These allegations were therefore included in the denial; and, as the rule of pleading has now become settled, that form of denial was authorized by the Code. Bennett v. Manufacturing Co., 110 N. Y. 150, 17 N. E. Rep. 669.

The indorsement and transfer of the note to the plaintiff were material facts, under this denial, to be established by him, before a recovery in the action could be permitted. Hays v. Hathorn, 74 N. Y. 486. In no other way could the plaintiff appear to be entitled to recover on the note than by proving its alleged indorsement and delivery to him, for those facts were in this manner denied; and it is not allowable to strike out a material denial of an answer on a special motion, but the issue so created must be disposed of by a trial of the action. Bank v. Leland, 50 N. Y. 673; Roby v. Hallock, 5 Abb. N. C. 86. Both the order and judgment should therefore be reversed, with costs to the appellants, to abide the result of the action. All concur.