Opinion
December, 1914.
John P. Duffy, for motion.
Edward J. Welch, opposed.
The action is upon a promissory note for $5,000, secured by a bond and mortgage for $10,000 as collateral. The answer admits the allegations of the complaint as to the making and delivery of the note, but upon information and belief denies the allegation of non-payment and that the plaintiff tendered the bond and mortgage in question and demanded payment of the note and that payment was refused. The answer also alleges upon information and belief the payment of $500 by the defendant and the assignment by him of all his right, title and interest in and to the bond and mortgage to the plaintiff in full settlement, payment and satisfaction of the note, and that said assignment was accepted by the plaintiff as such. The plaintiff moves for an order overruling the answer as frivolous and for judgment. Undoubtedly the plaintiff has a grievance. The defendant ought to know positively whether or not he has paid the note and whether or not the bond and mortgage has been tendered to him and payment demanded, all of which allegations he has denied on information and belief. So, also, he ought to know whether or not he has made an assignment of the bond and mortgage to the plaintiff in full settlement and other matters affirmatively alleged in his answer. It may be, however, as pointed out in Kirschbaum v. Eschmann, 205 N.Y. 127, 134, that the defendant can establish his good faith in employing the form of pleading he has, as, for example, by showing that the acts referred to were performed on his behalf by some authorized agent and that the defendant in fact has not personal knowledge and so is within his rights in pleading on information and belief. But while the plaintiff has a grievance, it would seem that he has mistaken his remedy. He moves against the pleading as frivolous under section 537 of the Code of Civil Procedure and asks for judgment, instead of moving under section 538 and asking that the answer be stricken out as a sham. In Harley v. Plant, 210 N.Y. 405, in a case similar to this, the court (at p. 412) said: "A motion made under section 538 would enable the party moved against to prove, if possible, that the pleading or the answer or defense, presumably false, was in fact valid, and is the proper method of testing an alleged defect of that description." The motion is denied with ten dollars costs to abide the event.
Motion denied.