Wirgman v. Hicks

6 Abb. Pr. 17

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

Opinion

Bosworth, J.

The plaintiff moves to strike out the defendant’s answer as sham. The answer is not shown to be untrue; but the moving affidavits state facts which, if true, would avoid the effect of the matter stated in the answer.

The matter stated in the answer, if proved, would compel the plaintiffs to prove themselves bona fide holders of the note before maturity, for value. The defendant has a right to have ■ those facts established by a jury. Whether they are true or not, he cannot be necessarily presumed to know, and because he does not fully deny them, his answer for that cause is not to be stricken out as sham, which alleges that the note was procured from him by a gross fraud.

Motion denied.