Swinburne v. Stockwell

58 How. Pr. 312

• Court: New York Supreme Court
• Decided: August 15, 1879
• Status: Published

Opinion

Tappan, J.

The denial in each of the answers, upon information and belief, is not authorized by the Code, and is insufficient (Code of C. P., sec. 500; Powers agt. R., W. and O. R. R. Co., 3 Hun,, 285, and cases there cited).

There being no sufficient denial for the purposes of the action, the complaint is admitted (Code of C. P., sec. 522).

The facts set forth in the second defense in defendants’ answer, inconsistent with the complaint, cannot be construed as a denial of it. The complaint being admitted, evidence could not be given under the second defense ( Wood agt. Whitney, 21 Barb. S. C. R., 190; West agt. N. Ex. Bk., 44 Barb. S. C. R., 176).

The pleadings will be held frivolous when there is a decison in point adverse to its sufficiency (Bliss Code, 405, cases cited in note).

The answers are frivolous, but were interposed in good faith.

This will not furnish any defense to the motion (Hecker agt. Mitchell, 5 Abb., 453), but is good reason for allowing an amendment.

Judgment for plaintiff with costs and ten dollars costs of motion, unless defendants amend within ten days after service of a copy of the order.