Stockton v. Kenney , 52 N.Y.S. 1006 ( 1898 )

Clearwater, J.

The action is upon a note alleged to have been made by the defendant, a lawyer, to the order of the plaintiff. The answer denies any knowledge or information sufficient to form a belief, as to the truth of any. of the allegations contained in the ■complaint. The pleadings are verified. ' The plaintiff moves to ■ strike out the answer as frivolous, and for judgment on the pleadings, claiming that as the defendant is charged with making the note, he' knows whether he made it or not, and a denial of any knowledge or information sufficient to form a belief as to the truth of the allegation that he did make it, is frivolous..

The answer may be false, but it is not frivolous within the construction given to that expression by the decisions under the Code. Shearman v. New York Central Mills, 1 Abb. Pr. 187, cited by the plaintiff, and the earlier cases to the same effect are now regarded as overruled. The modem and present rule is, that a general or specific denial which raises a material issue cannot be stricken out when pleaded in a form permitted by the Code. The denial here is in the prescribed form, and that which is legally permissible cannot be regarded as frivolous. Robert Gere Bank v. Inman, 51 Hun, 97, is a fair example of the later cases to which I refer, and was affirmed by the Court of Appeals in 115 N. Y. 650.

The motion is denied, but without costs.

Motion denied, without costs.