#### Samuel Rochkind and Others, Copartners Composing the Firm of Rochkind, Cohen *&*Company, Respondents, *v.*Max J. Perlman and Benjamin Kogan, Appellants, Impleaded with Judah Jacobson, Defendant.

Second Department,

January 24, 1908.

Pleading—answer—sham defense — denial not sham—when denials and defense frivolous — remedy in various cases.

A denial can never be treated as sham, viz., as false; only a defense may be ■ treated as sham.'

Both denials and defenses may be frivolous. A denial is frivolous when upon its face it is not a denial, and a defense is frivolous when upon its face it is not a defense.

The remedy for a frivolous denial or defense is a motion for judgment thereon; the remedy for a sham defense is a motion to strike it out.

A denial of any knowledge or information sufficient to form a'belief of allegations of the complaint is. permitted only out of necessity,, to meet certain rare cases where the defendant is honestly without any knowledge or information thereof sufficient to form a belief as to their truth or falsity.

This form of denial has to be permissible in the particular case, and followed in ■ all substantial particulars, in order not to be frivolous.

Such form of denial is frivolous where the facts are presumptively within the defendant’s knowledge. •

Such form of denial is also frivolous in a case of intentional ignorance of the defendant, viz., when it is his duty to know or learn the facts, and they are at hand and accessible, as in a public record, for instance.

Hookeb, J., dissented, with opinion.

Appeal by the defendants, Max J. Perlman and another, from a ■ judgment of tlie Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Kings on the itliyday of June, 1907, pursuant to an'order entered in said clerk’s office on the 4th day of June, 1907, granting the plaintiffs’ motion for judgment upon the ground that the answer interposed by the appellants was frivolous and sham, and also from the said order upon which the judgment appealed from was entered.

*William S.*Maddox, for the appellants.

*Abraham B*Schleiner, for the respondents.

*809Gaynor, J.:

1. The notice of motion was for judgment on the answer as “ frivolous and sham”. This was indiscriminate and inaccurate, for the words are not synonymous, or even like in meaning, and motion for judgment may be made only on a frivolous answer. The remedy prescribed for a sham defence is a motion to strike it out. A denial can never be treated as sham, but may be frivolous.

There is no defence, *i. e.,*affirmative defence, as it is sometimes called, pleaded in this answer, but only denials, and denials which are sufficient in form may not be struck out as frivolous, and no denial may be considered or struck out as sham (*Wayland*v. Tysen, 45 N. Y. 281; *Meurer*v. Brinkman, 25 Misc. Rep. 12). Judgment may be had on a denial on motion, only when upon its face it is frivolous, *i. e.,*not a denial, and on a defence, only when upon its face it is frivolous, *i.*6.,. not a defence.-' Ro affidavit can be used on such a. motion (Code Civ. Proc. § 537); and defences only, and not denials, may be struck out as sham, which means false, which has to be shown by affidavit (§ 538). This latter section, that “A sham answer or a sham defence may be stricken out,” is no longer strictly accurate since the decision in *Wayland*v. *Tysen (supra)*in 1871 that denials may not be struck out as sham, and must be applied as if it -only read that “a sham defence” may be struck out. It may seem strange that it has not been amended in the intervening years.

2. As this answer consists of denials only, it could not be treated as sham, as that word applies to defences only, as we have seen. But Mr. Justice ^elly correctly decided that the denials are frivolous, and ordered judgment thereon for the pdaintiffs.

Only two forms of denial are permitted, viz., “A general or specific denial of each material allegation of the compdaint controverted, by the defendant, or of any knowledge or information thereof sufficient to form a belief ” (Code Civ. Proc. § 500). The so-called denials in this case purport to be under this latter form. It is permitted only out of necessity, to meet certain rare cases where the defendant is honestly without any knowledge or information of allegations of the complaint sufficient to form a belief of them; does not know whether they are true or false, and is therefore unable to positively deny them. In such a case he is permitted to *810answer that lie *denies*that he has “ any -knowledge or information thereof” *(i.*e., of such allegations) “ sufficient to form a belief ” of them, *i. e.,*as to their truth -or falsity.

This prescribed form of denial has to be (1) permissible in the particular case, and.(2) followed in all substantial particulars, in order to' be good, *i. e.,*not frivolous.

*a.*- If the facts alleged in the complaint which are denied by this . form of denial are presumptively within the defendant’s knowledge, as ' would be the case of transactions with him personally, for instance, he. cannot use such form of denial. It would be a mere evasion, and that the courts will not allow. It was not meant to enable defendants to .deny their own personal transactions, but only things which did not come within their personal knowledge. . “.The true distinction to be observed in determining when a defendant may avail himself of the privilege accorded to him of answering in the qualified form allowed by the Code, and when he must- positively admit ” (he is not required to make formal admission of anything under our Code) “ oi deny the allegations, is to inquire whether the facts alleged are presumptively within the - defendant’s knowledge. If they are, he cannot avail himself of this form of denial ” (Encyc., Pl. & Pr. Vol. 1, p 811; and the cases there cited; *Singer*v. *Effler,*16 Misc Rep. 334; *Thorn*v. *N. Y. Central*Mills. 10 How. Pr. 19). This was also the rule in the court of chancery *(Hall*v. *Wood,*1 Paige, 404; *Sloan*v. *Tittle,*3 id. 103).

*b.*Hor may this form of denial bé used in a case of intentional .ignorance of the defendant when it is his duty, as here, to know or learn the facts, and they are at. hand and accessible. The appel- ' lants became sureties on a bond to pay the judgment on a mechanic’s lien if the lienors should recover judgment on; such lien, and' this action is against the appellants on such bond. It was their duty to ¡)ay the said judgment when recovered; and when notified of its recovery, and called upon to pay it, it was their duty to ascertain if it had been recovered. If a defendant’s lack of knowledge or information in such a case arises from his unwillingness or refusal to know the facts, a denial in this form is not permissible. A reading of the complaint and answer would show such denial to be frivolous! Having such knowledge or information at hand, he can- ' not be permitted to deny that he has it, for he has it, but only shuts *811liis eyes to it. And hence in such a case “ A party cannot plead ignorance of a public record to which he has access, and -which affords him all the means of information necessary to obtain positive knowledge of the facts ” (Encyc. Pl. & Pr. Vol. 1, p. 813; *McLean*v. *Julien Electric Co.,*28 Abb. N. C. 249; *Zivi*v. *Einstein,*1 Misc. Rep. 212; 20 N. Y. Supp. 893; *Ketcham*v. *Zerega,*1 E. D. Smith, 553; *Morgan & Co.*v. *Quo Vadis Amusement Co.,*45 Misc. Rep. 130; *Goodell*v. *Blumer,*41 Wis. 436; *Mulcahy*v. *Buckley,*100 Cal. 484); It would be as reasonable to permit him to plead ignorance of facts which he has in his greatcoat pocket or desk. As Mr. -Jnstice Field said in *Gas Company*v. *City of San Francisco*(9 Cal. 453), it is the duty of a defendant to acquire the knowdedge and information necessary when it is accessible- to him by a public record. Otherwise he is permitted to avail himself of a modified form of denial intended only for defendants who are honestly without knowledge or information, not for defendants dishonestly without it. ■ He cannot be permitted to shut his eyes in the presence of the court and say he cannot see. He must be told to open his eyes and see. Courts do not permit themselves to be fooled.

*c.*The first subdivision of the complaint alleges the filing of, the mechanic’s lien in the Kings county clerk’s office on or about September 5th,' 1906, and the contents thereof. . The answer of the appellants to this is that “ they have no knowledge or information sufficient to form a belief as to the .contents of the said notice or the sufficiency thereof as a,compliance with the requirements of the statutes of this state for the purpose of perfecting a mechanic’s lien”. In the first place, this is not in the form prescribed by the Code. As we have seen, it requires a denial that the defendant has “ any knowledge or information *thereof*”, *i. e.,*of the precise allegations of fact of the complaint being denied, “sufficient to form a belief” ’of the same. In this case the denial-is not that they have any knowledge or information *“*thereof ” sufficient to form a belief as to the same, which is the particular and restricted denial required, but a denial that they have any knowledge or information in general sufficient to form a belief “ as to the contents of the said notice ”, etc. The statute does not prescribe this loose denial, but brings the defendant to a. precise test in the forum of his conscience. *812It is not substantially the denial prescribed. And if it could be ■treated as a denial, it would still be not of any -knowledge or information of the particular allegations of fact of the complaint of the contents of the notice, as it has to be, but of any knowledge 'or information “as to the contents of the said notice ”, all of its contents, its contents generally, whereas no part of its contents' except those alleged in the complaint are issuable by a denial. In the next place, and aside from the departure from the form of denial prescribed by the Code, such a denial was not perrni isible in respect of the allegation of the filing or of the contents of the notice of lien, for the. said notice was a public record in the county, and if the defendants lacked any knowledge or information of it, it was willful and intentional, for it was their duty to inform themselves of its filing and contents. This is all on the assumption on both sides that the filing of the notice of lien and its contents are material facts at all in the action, and needed to be alleged in the complaint> •

The, third subdivision of the complaint alleges the giving of the bond, the filing'thereof .in the Kings county clerk’s office, and that the plaintiffs thereafter brought an -action in the Supreme Court against the land owner, the principal thereon, to foreclose the said lien, that he answered, and that the action was tried, anda judgment was obtained and entered establishing the plaintiffs’ said lien, and adjudging the amount due to the plaintiffs; and that a copy of the' said judgment was served on the defendants herein, and that ten days have elapsed since such service. These _ allegations are also denied in the same form. In respect of whether a copy of the judgment was served" on them, the appellants had personal knowledge of that allegation, and had to answer it positively; and in addition to the defect iii the form of the denial which has.already been pointed out5 and is persisted in throughout the answer — viz., ' failure to deny any knowledge or information “ thereof ” — knowledge and information of the said other allegations are all accessible to them in the judgment roll filed in the said action. The same is the case of the allegation in the. fourth subdivision of the complaint of the obtaining and entry of an order granting leave to begin this action, which is also denied in the same form.

It would serve no purpose to review the varying minor decisions *813on the questions here discussed. While there. is no controlling authority in this state, the great weight of reason is in accordance with the foregoing conclusions.

The order should be affirmed.

Jenks, Bich and Miller, JJ., concurred; Hooker, J., read for reversal.

Hooker, J. (dissenting):

The action is to recover frohi the defendants as sureties upon a bond given to discharge of record a mechanic’s lien filed by the plaintiffs. The action against the principal debtor to fix the amount of the lien had proceeded to judgment, so it is alleged in the complaint, in favor of the plaintiffs before the commencement of this action. This and other allegations of the complaint the defendants put in issue by denying knowledge or information sufficient to form a belief. The plaintiffs moved at Special Term upon the pleadings for judgment “ upon the ground that the answer interposed herein' is frivolous and sham; ” an order was made granting the motion and directing judgment; judgment was entered and the defendants appeal from the judgment and order.

There is a wide distinction between a motion for judgment on the ground that the pleading is frivolous and a motion to strike out a sham answer or sham defense. A motion for judgment on the ground that the answer is frivolous is provided for in section 537 of the Code of Civil Procedure and must be made upon a notice of not less than five days. The motion must be-determined by inspection of the pleading itself and affidavits are. not receivable. *(Dancel v. Goodyear Shoe Machinery Co.,*67 App. Div. 498.) A frivolous answer is one which, if true, does not contain any defense. *(Youngs*v. *Kent,*46 N. Y. 672.) On the other hand, a sham answer or defense is one that is false, good on its face, but setting up matter which is untrue. *(Goodwin*v. *Thompson,*88 Hun, 598; *Merritt*v. *Gouley,*58 id. 372.) The essential element is falsity (*Winslow*v. *Ferguson,*1 Lans. 436), and the motion calls for a termination whether the answei or defense is true or false *(Howe*v. *Elwell,*57 App. Div. 357),'and hence affidavits are receivable. In the case of frivolous pleading» the motion is for judgment; in the case of a sham answei or defense the motion is to strike out the pleading The *814present motion is for judgment on the ground the pleading is frivolous, and this although the word “sham” is mentioned in the notice of action; for the motion is in terms for judgment, and no papers are recited in the order as having been used upon the motion -save the pleadings themselves.

The remedy which the plaintiffs have adopted requires that they fix the amount of the lien in an action against the principal debtor before suing the sureties, and they state in their, brief that this is incumbent upon them. Inasmuch ás this is put in issue by the answer, it must be perfectly apparent that the answer is not frivolous for it puts in issue a material allegation of the complaint. The .question whether the defendants verified a false answer when they denied knowledge or information sufficient to form a belief in relation to the pendency and result of the prior, action, goes to the truth of the .answer and not to its sufficiency in form. This question of veracity cannot be dealt with upon a motion for judgment upon the ground that the answer is frivolous; if it can be discussed at all, the discussion must be in a motion to strike out the pleading as sham ; but whether such relief may be. granted is not here for our decision and we do not determine the question.

The judgment and order should, therefore, both be reversed, with costs.

Order and judgment affirmed, with costs and disbursements. .