Richter a. McMurray , 15 Abb. Pr. 346 ( 1862 )

Brady, J.

The answer in this case is sufficient in form. It contains a denial of any knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in the complaint, or any or either of them. The allegations in the complaint are, that there is a sum due on one note, set out, and then a further sum on another note, also set out. The complaint does not allege that the plaintiff holds notes drawn by the defendants, and indorsed by the payee, which have not been paid, and then demand judgment, but simply alleges that there is an amount due on each note. But, assuming that the complaint is sufficient, I think the answer of the defendants creates an issue, at least as to the indorsement by the payee, and is, therefore, not frivolous. The possession of the note at the trial would not, under the answer, be sufficient to enable the plaintiff to recover.

The judgment for these reasons should, I think, be reversed.

Hilton, J.—I think the answer puts at issue the allegation in the complaint, that the notes sued on were indorsed to the plaintiff.

Daly, F. J., was not present.

Judgment reversed.