#### Arthur G. Sherman *et al.,*Appellants, *against*Samuel Boehm *et al.,*Respondents.

(Decided January 16th, 1885).

A denial, in the answer in an action, of part of the allegations of the complaint, if shown to be a sham and false denial, may be stricken out as a sham defense, although the answer contains other allegations by way of defense to the same cause of action.

A denial in the answer, on information and belief, of averments of the complaint, is in effect an allegation that the only knowledge which defendant possesses is derived from information, and that he has formed a belief from such information that the averments of the complaint are false. Such a denial maybe stricken out as sham where it appears by uncontradicted proof that defendant must have personal knowledge of the allegations he denies on information; as, where the averments so denied include personal transactions with defendant.

Appeal from an order of this court denying a motion by plaintiffs to strike out the first defense in the answer of defendants to plaintiffs’ first cause of action.”

Such defense was as follows :

“ And, further answering on their information and belief, they deny each and .every allegation in said complaint constituting the plaintiffs’ first alleged cause of action.

The motion was to strike out the defense as sham, or that the answer be made more definite and certain as to what allegations were so denied, and that plaintiffs have such other and further relief as might be just.

The court at Special Term held that the matter complained of was a part of a defense (it being set forth in the answer, together with other allegations, and not separately numbered) ; that as part óf a defense it could not be stricken out as sham (Code Civ. Pro., § 538), and denied the motion. From the order denying the motion the plaintiffs appealed.

*Winthrop Parker,*for appellants.

The Special Term *43erred in holding this to be part of a defense, for though the matter sought to be stricken out is not set forth by description “ for a first and separate defense,” it is none the less so for that reason, and plaintiffs should not be prejudiced by defendants’ omission to separately state and number their defenses as required by the Code. A defense which purports to deny each and every allegation in the complaint constituting the first alleged cause of action, is a separate defense from its very nature, for the ground on Avhich it is predicated and proceeds is exclusive of matter in avoidance or of any other defense *(Benedict*v. Seymour, 6 How. Pr. 698). The reasons given in the cases cited by the judge at Special Term, that part of a defense may not be stricken out, are that the remaining allegations may so become an entirely different defense or unintelligible; but this reasoning cannot apply to a defense of denial complete in itself, and the first of said cases cited below (2 E. D. Smith 398) held a denial to be a separate defense. The admissions which precede this first defense are simple admissions Avithout matter in avoidance, and are so surplusage and not part of any defense. The admissions Avhich succeed it are in defenses Avhich confess and avoid, and are so entirely distinct from the defense of denial *(Slack*v. *Cotton,*2 E. D. Smith 398; *Collins*v. Coggill, 7 Robt. 81; *Pratt Manuf. Co.*v. *Jordan Iron &c. Co.*33 Hun 143).

The defense is indefinite and uncertain, for the reason that a denial of the allegations constituting the first cause of action involves a conclusion of Hat as to what allegations are necessary to or constitute that cause of action, and plaintiffs should not be left in any doubt, as they are here, as to what they must prove or what is admitted *(Mattison*v. *Smith,*19 Abb. Pr. 288; *Seward*v. *Miller,*6 How. Pr. 312).

The allegations of the duly verified complaint which are attempted to be put in issue by the defendants’ said defense, are shoAvn clearly by the affidavits of both plaintiffs, read on the motion, and by inspection of the allegations them*44selves, as set forth in the complaint, to be within the personal knowledge of the defendants.

The General Term of the Supreme Court, First Department, has lately held that denials upon information and belief are unauthorized by Code, § 500, create no issue, and should be stricken out; and this ease is exactly in point as having the denials, accompanied with previous simple admissions *(Pratt Manuf. Co.*v. *Jordan Iron &c. Co.,*33 Hun 143).

Denials on information and belief of allegations in the complaint, are not sufficient when the truth or falsity is within defendant’s own knowledge, and such a defense will be stricken out as sham, false and evasive *(Swinburne*v. *Stockwell,*58 How. Pr. 312; *Ketcham*v. *Zerega,*1 E. D. Smith 553; *Hance*v. *Rumming,*2 E. D. Smith 48; *Edwards*v. *Lent,*8 How. Pr. 28; *Byrne*v. *Benton,*3 Law Bull. 100).

Upon a motion made upon affidavits to strike out an answer or defense containing denials, Avhere it is satisfactorily proved that the denials are false, the court may strike out the defense as false *(Elizabethport Manuf. Co.*v. *Campbell,*13 Abb. Pr. 86; *People*v. *McCumber,*18 N. Y. 315; *Willett*v. *Metropolitan Ins. Co.,*2 Bosw. 678).

The case of *Wayland*v. *Tysen*(45 N. Y. 281) is easily distinguishable from the case at bar, for there we find a positive and verified denial on knowledge, the court distinctly placing its refusal to strike out on the grounds that the defense was the old general issue, and that prosecution for perjury would be the proper remedy for falsity, and saying in effect that, defendant standing upon his oath, the case could not be tried on motion and affidavits. Here the falsity shown is, that defendants personally made the contract, &c., and knew all about it, but sought shelter from perjury behind denial on information and belief, while the unansAvered affidavits additionally prove that the denial itself is false. Such defense is not good as a general denial *(Pratt Manuf. Co.*v. *Jordan Iron &c. Co.,*33 Hun 143).

*45*Jeroloman & Arrowsmith,*for respondents.

A court has no power to strike out as sham an answer consisting of a general denial (*Wayland*v. *Tysen,*45 N. Y. 281; *Newman*v. *Supervisors of Livingston County,*Id. 676). This motion cannot be granted unless the answer or defense is sham (*Winslow*v. *Ferguson,*1 Lans. 436).

A defendant may deny the allegations in the complaint on knowledge, or upon information and belief (Code Civ. Pro. § 524; *Stent*v. *Continental National*Bank, 5 Abb. N. C. 98; *Metraz*v. Pearsall, Id. 100).

The allegations in the complaint, controverted by defendants’ answer, do not constitute a cause of action. The plaintiffs merely assert that they had certain conversations with defendants, but do not allege any contract as made between the parties for any stated time. A defense stricken out as sham must be an attempted defense to a complaint setting forth a good cause of action.

The plaintiffs’ affidavit says that the transactions pleaded, in the first cause of action were had between plaintiffs and defendants. Even if that is true, these transactions should not have been pleaded, and are surplusage.

J. F. Daly, J.

The matter complained of is not part of a defense. Each denial of separate allegations of the complaint is a separate defense, and may be stricken out *(Black*v. *Cotton,*2 E. D. Smith 400). It appears from the affidavits on winch this motion is made, that the denial in the answer is false, because certain of the transactions alleged in the complaint, and covered by the denial, were personal transactions between plaintiffs and defendants. No affidavit was interposed by the defendants denying this statement. It appears, therefore, that a denial of those personal transactions “ on information ” is a sham and false denial, and should be stricken out.

It is no objection to granting this motion that a general or specific denial cannot be stricken out as sham. The decision in *Wayland*v. *Tysen*(45 N. Y. 281) applies to those denials made in the form authorized by section 500 of *46the Code, viz., absolute denials, or denials of information sufficient to constitute a basis of belief. It has been held that a denial “on information and belief ” may be made where the defendant has no positive knowledge, and is prepared to assert, upon such information as he possesses, that the allegations of the complaint are false *(Brotherton*v. Downey, 21 Hun 436). Such denials cannot be regarded as frivolous *(Metraz*v. Pearsall, 5 Abb. N. C. 90) ; nor as irrelevant or redundant *(Brotherton*v. *Downey, supra).*But it has not been held that such a denial is not subject to a motion to strike it out as sham where it appears by uncontradicted proof that the' defendant must have personal knowledge of the allegations he denies “on information.” It is in effect an allegation in the answer that the only knowledge which defendant possesses is derived from information, and that he has formed a belief from such information that the averments of the complaint are false. If that allegation is untrue because the averments of the complaint are of personal transactions, the remedial provision of section 538, permitting sham defenses to be stricken out on motion, should be applied, and the decision in *Wayland*v. *Tysen*(supra) should not be extended to cover the case. The allegations in this 'complaint which defendants have denied “ on information and belief ” include personal transactions between the parties, as well as matters which are not necessarily within defendants’ knowledge.

The motion should be granted, striking out the defense complained of as sham, but with leave to defendants to serve an amended answer on payment of $10 costs of motion, $10 costs of this appeal, and disbursements.

Allen, J., concurred.

Larremore, J., dissented.

Order reversed.