Hecker v. Mitchell

6 Duer 687

• Court: The Superior Court of New York City
• Decided: November 15, 1857
• Status: Published

Opinion

It is no defence to an action on a promissory note that one of the plaintiffs has commenced an action upon the note in another state, although an attachment has been issued therein, which has been levied upon property sufficient to satisfy the demand.

In an action by an indorsee against the maker of a promissory note, an answer which denies knowledge, etc., sufficient to form a belief whether the allegation of the complaint that the payee of the note indorsed it to the plaintiff be true, is not frivolous.

Such answer may be false, but, if so, the remedy is by motion to strike it out, not by motion for judgment on account of its frivolousness.

Where an answer contained two defences, and the plaintiff moved for judgment for the frivolousness of the answer, and one defence was held good and the other frivolous;—Held, that the latter defence might be stricken out, under the notice that the plaintiff would ask other and further relief, etc. (Eeported in 6 Abb. Pr. E. 463.)