MACAULEY v. BROMELL & BARKLEY PRINTING COMPANY

MACAULEY v. BROMELL & BARKLEY PRINTING COMPANY. New York City Court, Special Term, July, 1884. Pleading; denial on information and belief.—Verification. Under Code Civ. Pro. § 524,—which requires the verification of a pleading by a corporation, to be made by an officer or agent, with reference to his own knowledge, information or belief,—a denial in an answer by a corporation, upon information and belief, is not to be struck out as frivolous. The case of Shearman v. N. Y. Central Mills, 1 Abb. Pr. 187, superseded. In Richards v. Frechsel (decided in the same court at the same term), the same principle was applied as superseding the old rule that allegations presumably within the personal knowledge of the defendant could not be denied upon information and belief. , McAdam, J.—The complaint alleges “that the plaintiff, at the request of.defendant, sold and delivered to him goods to the value and agreed price of $97.43, no part of which has been paid.” The answer,- “ upon information and belief, denies each and every allegation in said complaint contained.” Whether this answer contains a legal form of denial, is the question to be determined. An answer in the above form was held good in Brotherton v. Downey (59 How. Pr. 206); Stent v. Continental Bank (5 Abb. N. C. 88), and in Metraz v. Pearsall (Id. 90). Where the charges made are, as in this case, presumably within the personal knowledge of the defendant, this form of denial was not formerly allowed. But the cases cited, and that of The Grocers’ Bank v. O’Rorke (6 Hun, 18), seem to countenance it. It follows that the motion for judgment on the answer as frivolous must be denied. No costs. [MAJORITY — McAdam, J.] McAdam, J. The answer, “ upon information and belief, denies each and every allegation of the complaint, except the allegation of the defendant’s incorporation.” The plaintiff moves for judgment upon the ground that the answer is sham and frivolous. The answer is verified by the treasurer of the corporation, and cannot be stricken out as sham (45 N. Y. 281,468). It is said to be frivolous because a corporation cannot deny an allegation “uponinformation and belief.” The case of Shearman v. New York Central Mills (1 Abb. Pr. 187), decided under the old .Code, is relied on by the plaintiff as an authority against the sufficiency of the answer. It is said in that case that “ a corporation is an artificial being which from its nature can have no knowledge or belief on any subject, independent of the knowledge or belief of its agents. It is a mere legal entity. It neither knows nor thinks.” Exactly so. But the officers and agents of the corporation must verify the answer, and must, under the New Code, do so truthfully under the pain and penalty of a possible prosecution for perjury. The case cited intended to, hold a corporation to the strict form of denial required (under similar circumstances) from a natural person. It did not intend to discriminate against corporations, nor to require from them any different form of plea than the Code requires from individuals. Testing that case by this rule, and applying the decisions under the New Code to the form of the answer, it must be held good (see 59 How. Pr. 206 ; 5 Abb. N. C. 88, 90; 6 Hun, 18). Under these decisions the person verifying the pleading “is permitted in a great measure to impress upon the pleading the operation of his mind,” that he may make the verification conscientiously. In the light of these cases the form of denial used in the answer, though “ upon information and belief,” is in accordance with the present practice, and creates a triable issue of fact, which must be disposed of by a trial in the regular way. It follows that the motion for judgment must be denied. No costs.