Schenkel v. Brettschneider , 159 N.Y.S. 159 ( 1916 )

PER CURIAM.

This is an appeal from a judgment rendered upon the pleadings in favor of the plaintiff, upon the ground that the answer interposed by the defendant is insufficient as a matter of law, and is frivolous, and was interposed in bad faith. Briefly stated the complaint alleges: First, the making of a lease between one Meyer Ellenbogen, as landlord, and the defendant, as tenant, running from May 1, 1913, to April 30, 1915; second, the entering into possession of the demised premises by the defendant, and his continuance therein until August 31, 1915; third, an agreed rental of $38 per month payable on the 1st day of each month; fourth, the falling due of rent on September 1, 1915, and a failure to pay the same; fifth, the assignment to this plaintiff of said lease before the commencement of this action. The answer was verified, and “denied upon information and belief the allegations in paragraphs 1, 2, 3, and 4,” and “denies that he has knowledge or information sufficient to form a belief as to paragraph 5 of the complaint.” This was held insufficient by the learned trial court and judgment given for the plaintiff.

The respondent urges in his brief that a defendant cannot deny that he has any knowledge or information sufficient to form a belief as to the truth of the allegations in a complaint when the facts alleged are within his knowledge (citing Preston v. Cuneo, 140 App. Div. 144, 124 N. Y. Supp. 1031); but he fails to make any reference to the fifth paragraph of the complaint, which sets up an assignment of the lease from the landlord named therein to the plaintiff herein, which paragraph is denied by the answer, and as to which no presumption of knowledge on the part of the defendant can arise.

Judgment and order reversed, with $10 costs to appellant.