Deuel v. Sanford

67 How. Pr. 354

• Court: City of New York Municipal Court
• Decided: June 15, 1884
• Status: Published

Opinion

Hyatt, J.

Motion to strike out answer as frivolous and sham. The complaint alleges the making of a promissory note by the defendant to his own order for value received, and its indorsement and delivery to one Tufts; also that said Tufts indorsed and delivered the same before maturity to James MlDeuel, as plaintiff is informed and verily believes, who there-after and before maturity sold and delivered- the same to plaintiff.

The first and second denials are practically the same;-.a--, denial that the defendant made; indorsed, and delivered the note as alleged in the complaint to George A. Tufts for value..

The fourth and fifth denials are “of any knowledge or.information sufficient to form a belief of the allegations of the complaint, that said Tufts before maturity or at any other:-time indorsed and delivered the said note to James M. Deuel,” and likewise, that said “ James M. Deuel sold and delivered. the same to=the plaintiff.”

The issues raised by the answer are material (Snyder agt. White, 6 How. Pr. R., 321; Sherman agt. Bushnell, 7 How. Pr. R., 171; Roby agt. Hallock, 55 How. Pr. R., 412). The denials cannot be stricken out as sham (Wyland agt. Tysen; and Thompson agt. Erie R. R. Co., 45 N. Y., 281, 468). The plaintiffs argument to demonstratethe answer to be frivolous, precludes him from establishing, that claim; its frivolous character must be apparent without argument to-make it frivolous.

Motion denied, with ten dollars costs to the defendant to abide the event.