SCHULTZE v. RODEWALD

SCHULTZE v. RODEWALD. N. Y. Supreme Ct., First Department; Chambers, October, 1876. Sham Answer. A motion, once denied, cannot be renewed, even on fresh papers presenting further evidence, without leave. A verified answer of denial should not be stricken out as sham, even after defendant, on examination before trial, has admitted what the answer denies. Motion to strike out an answer as sham. In January, 1861, Henry Shultze, by letter, directed the defendants Henry Rodewald and Franz Kremelburg, who were owing him $2000, in case of his death before its payment, to pay over the same to his sister Dora Schultze. They wrote a letter in answer, admitting an indebtedness of $2000, and promising to pay it as soon as they could, to him, or in case of his death, to his said sister, with interest at six per cent, from the first of that month, to the date of payment. Henry Schultze afterwards transferred and delivered this acceptance for the value of love and affection, to Dora Schultze, the plaintiff. He afterwards died. Apart of the amount due on the acceptance was paid, and this action was brought to enforce payment of the balance. The defendant in his answer, which was verified, denied any knowledge or information sufficient to form a belief as to Henry Schultze having transferred said acceptance to plaintiff, as alleged in the complaint, and added a general denial. Plaintiff moved to strike out the answer as sham ; but the motion was denied by Westbrook, J., under the ruling in Thompson v. Erie R. R. Co., 45 N. Y. 468, without leave to renew the motion. Afterwards the defendant was examined as a party before trial, pursuant to section 391 of the Code, and on the examination admitted the truth of the allegations in the complaint. Plaintiff thereupon moved again to strike out the answer as sham. George W. Van Siclen, for the motion. George C. Genet, opposed. [MAJORITY — Barrett, J.] Barrett, J. Judge Westbrook did not grant leave to renew on fresh papers, nor has the plaintiff moved for leave to renew. She has simply moved a second time on fresh papers for what has been once denied. This cannot be done. Apart from that, there is as good reason to deny the motion on the merits now as there was before. The defendant is entitled to have his examination passed upon by a jury. True, he admits what he seems to have denied ; but in view of the court of appeals’ decisions we cannot make a precedent for striking out general denials, whether specific or by ignorance. There must be common law evidence before a jury. Motion denied, with $10 costs. No appeal was taken.