Anna Rockowitz, an Infant, by Abraham Rockowitz, Her Guardian ad Litem, Appellant, v. Harris Siegel, Defendant, Impleaded with Pincus Malzman and Harris Goldman, Respondents

Anna Rockowitz, an Infant, by Abraham Rockowitz, Her Guardian ad Litem, Appellant, v. Harris Siegel, Defendant, Impleaded with Pincus Malzman and Harris Goldman, Respondents. First Department, June 28, 1912. Pleading — denial upon information and belief. Where the plaintiff in an action against the lessees of a building to recover for personal injuries sustained by reason of the defective eondi- - tion of one of the public stabeases alleges that at the times mentioned the defendants were in control and management of the building and reserved to themselves the vestibules, halls, etc., which were used in common by all the tenants, the defendants may deny such allegations upon information and belief, notwith standing them unquestionable knowledge of the truth or falsity thereof. A denial upon information and belief may not be stricken out as sham. Appeal by the plaintiff, Anna Bookowitz, an infant, from an order of the Supreme Court, made at the New York Special Term and entered hi the office of the clerk of the county of New York on the 27th day of May, 1912, denying the plaintiff’s motion to strike out an answer as sham or to have the same made more definite and certain. Isidore Schneider, for the appellant. William Shea, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The action is against the lessees of a building, of which they rented out portions to various tenants, reserving to themselves, as it is alleged, the vestibules, halls, lobbies and staircases which were used in common by all the tenants and other persons. The plaintiff was injured, as it is said, by reason of the defective condition of one of the public staircases. Although the plaintiff moved to strike out the whole answer, it appears by. the brief of her guardian that her motion is intended particularly to be addressed to the defendant’s attempted denial of paragraphs 4 and 6 of the complaint. The first of these paragraphs alleges that, at the times mentioned, the defendants were in control and management of the building. The second alleges that they reserved to themselves the vestibules, halls, etc., which were used in common by all the tenants. Of course the defendants know whether these allegations are true or not, especially as they admit (by not denying) that they are lessees and in possession of the building, and rent or lease portions to various tenants. Notwithstanding their unquestionable knowledge of the truth or falsity of paragraphs 4 and 6, they aver in their answer that “upon information and belief the said defendants deny each and every of the allegations contained in ” said paragraphs 4 and 6. The form of denial adopted by defendants is one which is authorized (Bennett v. Leeds Mfg. Co., 110 N. Y. 150) and constitutes a good denial. The motion, therefore, resolves itself into one to strike out a denial as sham, and this may not be done. (Hopkins v. Meyer, 76 App. Div. 365; Gallagher v. Merrill, 13 id. 182.) As to the other branch of the motion the answer is definite and certain enough. The only trouble with it is that it is apparently disingenuous. Under the present liberal practice relative to the examination of adverse parties before trial, the plaintiff can probably obtain from the defendants themselves the evidence of the truth of the two paragraphs which they have denied. The order should be affirmed, with ten dollars costs and disbursements. Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.