Nettie E. Howe, Respondent, v. Joseph E. Elwell, Appellant

Nettie E. Howe, Respondent, v. Joseph E. Elwell, Appellant. .Answer stricken out as sham — a denial on information and, belief of matter presumably within the pleader’s knowledge will not be stricken out—a frivolous answer will not be stricken out. An answer, stricken out by an order as “sham, false and frivolous,” will be presumed to have been stricken out as sham. An answer denying, upon information and belief, matters of which the answering defendant presumably has knowledge, should not be stricken out as sham. A snam answer is one that is false. It seems, that a frivolous answer cannot be stricken .out, and that the proper practice is to move for judgment thereon. Appeal by the defendant, Joseph E. Elwell, from an order of the Supreme Court, made at Broome Special Term and entered in the office of the clerk of the county of Otsego on the 10th day of May, 1900, striking out the answer of the defendant as sham, false and frivolous. This is an action for slander. The first Count of the complaint contains the usual allegations charging that the defendant maliciously spoke concerning the plaintiff certain defamatory words, therein specifically set forth. The second count is vague and general and in substance alleges that the defendant at various times and places charged the plaintiff with unchastity. The answer, on information and belief, denied each and every allegation of the complaint and was verified by the defendant’s attorney. On motion, made by the plaintiff on the pleadings, an order was made by the court striking out the answer as “ sham, false and frivolous.” From this order the appeal is taken. A. M. Gibbs, for the appellant. John G. Johnson, for the respondent. [MAJORITY — Edwards, J. :] Edwards, J. : An answer cannot be stricken out as frivolous. If adjudged to be frivolous, judgment must be ordered thereon and the pleading must remain in the record and become a part of the judgment roll. (Strong v. Sproul, 53 N. Y. 497.) The inference, therefore, is that the answer was stricken out as sham. (Briggs v. Bergen, 23 N. Y. 162.) The form of the general denial “ upon information and. belief ” is good (Bennett v. Leeds Mfg. Co., 110 N. Y. 150), and a general or specific denial, if pleaded in a form permitted by the Code, cannot be stricken out as sham, although shown by affidavits to be false. ( Wayland v. Tysen, 45 N. Y. 281; Thompson v. Erie R. R. Co., Id. 468 ; Farmers’ Nat. Bank v. Leland, 50 id. 673.) The plaintiff’s counsel contends that the denial is insufficient for the reason that the defendant must be presumed to have knowledge of the allegations of the complaint and, therefore, must either admit or deny absolutely. ’ If this proposition were correct, the denial could not be stricken out as sham. A sham answer is one that is false. The words “sham” and “false” are synonymous (Thompson v. Erie R. R. Co., supra), and a motion to strike out a pleading as sham “ calls for a determination whether the pleading be true or false.” ( Wayland v. Tysen, supra.) The court cannot say that a denial on information and belief is untrue because the party presumably had sufficient knowledge to deny absolutely the allegation if it were not true. But I think that this form of denial is permissible in cases where a party would naturally be presumed to have knowledge of the ¿ truth or falsity of an allegation. Such a presumption might be erroneous. A defendant may conscientiously doubt whether he has sufficient knowledge to deny absolutely, yet may be in posses- . sion of such information as will enable him truthfully to deny on information and belief, and if he choose to adopt the latter form, it cannot be stricken out as sham. The following authorities support this view : Neuberger v. Webb (24 Hun, 347); Humble v. McDonough (5 Misc. Rep. 512); Martin v. Erie Preserving Co. (48 Hun, 81.) The contention of the plaintiff is based on the authority of Pardi v. Conde (27 Misc. Rep. 496) which cites as authority Edwards v. Lent (8 How. Pr. 28), the doctrine of which in respect to the power to strike out a denial as sham has been overruled by the later cases. The' order appealed from should be reversed.- All concurred ; Smith, J., in result. Order reversed, with ten dollars and disbursements.