Municipal Bank v. Parkway Walk Construction Corp.

224 A.D. 864

Opinion

Order modified by denying the motion for judgment on the pleadings and by denying the motion to strike out denials relating to paragraphs 12,13 and 14 of the complaint, and as thus modified the order is affirmed, with ten dollars costs and disbursements to appellant. Under rule 104 the burden of establishing that these denials were sham was upon the plaintiff. (Carmody’s N. Y. Prac. § 291; People v. McCumber, 18 N. Y. 315.) These denials did not relate to matters of which defendant Gelband had personal knowledge or with respect to which he had constructive knowledge. The denials, therefore, were not presumptively false and there is no showing in the record that they were in fact false. La.zansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.