#### Rosa Frey, Plaintiff, *v.*John Sylvester, Defendant.

(Supreme Court, Onondaga Special Term,

June, 1898.)

Goods sold —Sham answer.

An answer,, interposed to a complaint for goods sold, which, in its first defense of payment, sets forth upon information and belief facts which, if they existed, must have been within the personal knowledge of the defendant and which, in its second defense, alleges that the plaintiff agreed to accept for a greater sum a lesser sum, and this, by orders of the defendant on a third party not alleged to be indebted to the defendant nor alleged to have agreed to accept the orders, should be stricken out as sham,

*168Motion to strike out answer as sham.

Barnum & Manson, for motion.

Charles D. Thomas, for defendant.

Hiscock, J.

This action is brought to recover the sum of $526.12, claimed to be due from defendant to plaintiff for beer sold by the latter and his assignor. ■

The answer served does not deny the indebtedness or any allegations of the complaint. In fact, it expressly admits> the accruing of a large portion at least of the indebtedness. It does not, therefore, come within the rule which prohibits striking out as sham, an answer which by general or specific denials of allegations in the complaint raises issues to be tried. Robert Gere Bank v. Inman, 51 Hun, 97.

It, upon the other hand, sets up what purport to be affirmative defenses, and which should, in'my judgment, be stricken out as sham.

The first answer of alleged payment standing by itself is sham upon its face, for it sets forth upon information and belief merely as a defense, facts which it must be assumed would, if they existed, be within the personal knowledge of the defendant. This, defense, however, is probably to be considered in- connection with the second defense. ■

This second defense is pretty nearly frivolous and insufficient upon its face. ' Independent of a single feature hereafter to be considered, it sets forth an agreement upon the part of the plaintiff to take in satisfaction of a conceded indebtedness of $419.12, a mere unaccepted order by .the defendant upon a third party for $150. The feature referred to is the alleged further agreement between the parties that the defendant would buy all the beer he might need between certain dates at a price alleged to be in excess of the usual price, and give similar orders upon said same third party. The beer so purchased between said dates, however, amounted to only $117. Therefore, if it was substantially all profit, which is not claimed, plaintiff, according to defendant’s answer, has agreed to accept in payment of $409.12, the debtor’s own unaccepted orders upon a third party for $267. Even if, however, this defense.is not frivolous upon.its face, it is extremely improbable. As stated above, it is not claimed by this defense that the orders were to be accepted by the third party upon whom they were drawn; and it is not even alleged that such third party owed the *169defendant a dollar of indebtedness against which they could be drawn.

In addition to the inherent improbability of this defense, however, the moving affidavits set forth in considerable detail and positively, facts showing its falsity. Many of the allegations of said affidavits relate to interviews with and admissions by the defendant-of the justice of the plaintiff’s claim, and it is quite significant that the only affidavit made by defendant in response thereto is one in which he states that he “ believes ” the answer interposed by him is true, etc..

I think that the answer should be stricken out as sham within the principles laid down in First Nat. Bank v. Slattery, 4 App. Div. 421; Commercial Bank of Rochester v. Spencer, 76 N. Y. 155; Albany Co. Bank v. Rider, 74 Hun, 349; Robert Gere Bank v. Inman, 51 id. 97.

The motion is granted, with $10 costs.

Motion granted, with $10 costs.