Duncan v. Lawrence

6 Abb. Pr. 304, 16 Bosw. 103

Opinion

By the Court.

Footnotes

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Bosworth, J. The complaint does not state that the defendants transferred or delivered the note to the plaintiffs.

The Code permits any allegation in a complaint to be put at issue by an answer which states that the defendant has not “ any knowledge or information thereof sufficient to form a belief.” (Code, § 149, subd. 1.)

All the allegations in the complaint, which are inserted to show title to the note to be in the plaintiffs, are severally put at issue by an answer in that form. They are thus as directly and •absolutely controverted, according to the present rules of pleading, as if the truth of each had been expressly denied.. The plaintiffs, on the trial of this action, cannot recover without first giving evidence sufficient to establish, prima fade, that the note has been delivered to and is held by them.

When, in an action by an indorsee of a promissory note, the answer puts at issue, in a form prescribed by the Code, all the allegations employed in a complaint to show the title and possession of the note to be in the plaintiffs, it is not only not frivolous, but it is a sufficient pleading. (Metropolitan Bank a. Lord, 4 Duer, 630.)

The answer in this action is, therefore, sufficient. It raises a material issue, the truth of which the plaintifis must establish, in • order to recover.

The order appealed from must, therefore, be reversed, and $10, the costs of the appeal, and the costs of opposing the motion for judgment, must abide the event of the action.

Present, Bosworth, Hoffman, Slosson, and Woodruff, JJ.