Meurer v. Brinkman , 53 N.Y.S. 770 ( 1898 )

Gaynor, J.:

The action is upon two promissory notes by the rpayee against the maker. The answer denies the allegation of the 'complaint that the notes were made and delivered for value. This ■denial raises the issue of want of consideration, it not being necessary to plead lack of consideration as a “ defence ” (Evans v. Williams, 60 Barb. 346). • The motion is upon affidavits to strike the answer out as sham (Code Civ. Pro. sec. 538)., A general or special denial cannot be struck out as sham. Only “ defences ” may be struck out as sham (Wayland v. Tysen, 45 N. Y. 281). Ho issue raised by a denial is a “ defence ”. A “ defence ” is a plea of new matter, viz., matter outside of any issue which may be raised by a general or special denial. Matter which can be proved under a denial is not a “ defence ” (Code Civ. Pro. secs. 500, 507; Flack v. O’Brien, 19 Misc. Rep. 399; Green v. Brown, 22 Misc. Rep. 279; von Hagen v. Waterbury Mfg. Co. 22 Misc. Rep. 580). It has become quite common to plead denials under the head “ For a defence ”; and I admit there are like inadvertences in opinions of judges; but an educated bar should not be the followers but the correctors of such things.

The motion is denied.