#### The Aiken, Lambert & Co., Respondent, *v.*Charles L. Haskins, Appellant.

(County Court, Saratoga County,

May, 1899.)

1. Justices’ Court — Judgment under chapter 441 of Laws of 1881, may be taken without proof where .the answer is frivolous;

Under the provisions of chapter 414 of the Laws of 1881, judgment may be taken in a justice’s court upon a verified complaint, without making any proof, where the answer interposed is clearly frivolous.

*6308. Same — Frivolous denials as to the right of a foreign corporation to do business, and as to the time when, the debt became due.

Where a complaint by a foreign corporation for goods sold is silent as to the place of sale it is to be presumed that the sale was made and completed in the foreign state, and hence an allegation, contained in the answer of the vendee,, denying any knowledge or information as to whether the plaintiff was duly incorporated or was lawfully ' doing business within the state of New York, presents no defense. .

An answer which admits the allegation of the complaint as to the amount in which the defendant is indebted, but which denies on information and belief that the amount in question became due and • payable on the day named in the complaint, is frivolous.

Appeal from -a judgment in favor of plaintiff rendered in a Justice’s Court;

Nash Rockwood, for appellant.

F. B. Phillips, for respondent.

Houghton, J.

The action was brought for goods sold and de- ■ livered. The complaint alleged that the plaintiff was a business • corporation, organized under the laws of the state of New Jersey and lawfully doing business within the state of New York, and that during the years 1896 and 1897, it sold goods to the defendant ■' at the agreed price of $72.88, and that that sum- became due and ■ payable on the 18th day of January, 1897.

An answer was interposed by the defendant averring that he had no knowledge or information as to whether the plaintiff was duly incorporated and lawfully doing business within the state of New York. The answer further alleged, by way of admission, that the defendant was indebted to a firm known as Aiken, Lambert. & Oo. (the name of this plaintiff), in about the sum of $72, for goods sold and delivered bnt denied, upon information and belief, that the ..indebtedness became due and payable on the 10th day of January, 1897.

The plaintiff moved for judgment on the pleadings, which motion was granted by the justice without common-law proof of plaintiff’s claim.

A verified complaint having been served with the. smnmons and the demand being one for money only, the plaintiff would have *631been entitled to judgment without proof of its claim under the provisions of chapter 414 of the Laws of 1881, if no answer had been interposed. .

The defendant insists that because his answer was filed judgment -could not be taken without resort to common-law proof.

The law of 1881 prescribes that in case the defendant fails to answer or demur to a verified complaint, based on a demand for money only, in Justices’ Court at the time of the return of the summons, he shall be deemed to have admitted the allegations of the complaint as true, and the court shall, upon filing the summons and complaint with proof of service thereof, enter judgment for the plaintiff against the defendant for the amount demanded without further proof.

The" question to be determined is whether the answer filed by defendant was sufficient to prevent judgment without further proof.

The plaintiff was. a foreign corporation doing business within the state of New York. By section 15 of chapter 687 of the Laws of 1892, no foreign stock corporation doing business within the state of New York can bring any action in this state upon any contract made by it in this state until it has procured a certificate from the secretary of state that it has» complied with the laws of the-state of New York with reference to doing business therein. It is not incumbent upon the foreign corporation suing to prove in the first instance that' it has procured this certificate, but its omission to do so is a matter of defense, where the certificate is a necessity'. Nicoll v. Clark, 13 Misc. Rep. 128. The defendant claims to have raised this issue by his answer. The plaintiff’s place of business was in the state of New Jersey and the defendant’s place of business was in Saratoga. Springs, New York. The allegations of the complaint are silent as to the place of delivery of the goods and the general rule is that unless something to the contrary appears, the store of the merchant at which the commodities are sold is the place of delivery. Bronson v. Gleason, 7 Barb. 472; Benjamin on Sales, 649. Of,course it may be that delivery in this case was not complete until the goods were received by the defendant at Sara-toga Springs; and on the other hand, delivery to the common carrier in the state of New Jersey may have been a complete delivery to pass title to the defendant. But so far as the complaint discloses, a simple sale and delivery being alleged, the presumption is that the goods were delivered in the state of New Jersey, and, therefore, the contract was made and completed in that state, and *632not in the state of New York, and hence the plaintiff was not prohibited from bringing an action in this state upon it without a certificate for the contract was wholly completed outside of this state.

In Backman v. Jenks, 55 Barb. 468, liquors'were ordered in the state of Vermont from a firm doing business in the state of New York, and the goods were delivered to the common carrier in the state of New York, and it'was held that recovery could be'had on the contract notwithstanding the fact that the statute of the state of Vermont prohibited recovery upoin contracts for the sale of spirituous liquors, and the fact that payment was to be made in the state of Vermont did not alter the fact,

Even if the goods had been ordered by the defendant by written order mailed from Saratoga Springs to the plaintiff in the state of New Jersey and default upon payment had been made in the state of New York, yet the contract would not be deemed to have been made within the state of New York'in such manner as to ren der the certificate in question necessary in order to enable the plaintiff to bring its action. Shelby Steel Tube Co. v. Burgess Gun Co., 8 App. Div. 444. • So far as the record discloses, therefore, the contract was not made in the state of New York, and the answer of the defendant that the plaintiff had procured no certificate authorizing it to do business within the state of New York, was immaterial and established no defense. ■

Was there any defense established by the 'answer in any other respect ?

The answer admits that the defendant is indebted to the’plaintiff in about the sum of $72, but denied, upon information and belief, that that sum became due on the 10th day of January, 1897. I think this part of the answer is clearly frivolous as it established no defense to any material allegation.

An answer admitting the execution of a lease but denying upon information and belief the terms and conditions thereof, pleads no defense and' is frivolous. Collis v. Alburtis, 9 Civ. Pro. 80. A denial of *“*indebtedness ” is frivolous (Fosdick v. Groff, 22 How. Pr. 158), and that plaintiff is the lawful owner of the note in suit, without any further averment (Alder v. Bloomingdale, 1 Duer, 601), and a denial that a note is *“*payable ” raises no issue. Manufacturers’ Nat. Bank v. Bussell, 6 Hun, 375.

The defendant’s answer, therefore, was frivolous and raised no issue to the complaint. Did the interposition of such an an*633swer prevent the plaintiff from taking judgment under the provisions of chapter 414 of the Laws of 1881 ? Section 3 of that law says that in case the defendant fails to answer he shall be deemed to have admitted the allegations of the complaint and judgment may be taken.. Of course the legislature has the right to prescribe any rule it sees fit with respect to the taking of judgments by default, and prescribe the character of actions in which such judgments may be taken. I cannot, however, bring myself to believe that the legislature intended 'the bare filing of an answer which alleges nothing and denies nothing material and raises no issue, should have the effect of preventing the taking of judgment upon a verified complaint. The practice is a salutary one' and greatly facilitates the enforcing of many claims in Justice's Courts, and it must be assumed that the legislature intended the plaintiff should be allowed to take his judgment as in a court of record, unless the complaint or some part of it was denied or a demurrer interposed.

Oulman v. Schmidt, 35 Hun, 345, is the first case which passed upon this law. In that case a demurrer was interposed, and in addition the cause of action Set forth in the verified complaint was not one provided for by the law of 1881, it being a claim not arising on a contract for the recovery of money only. Then followed that of Thomas v. Jones, 47 Hun, 81, in which a demurrer was also interposed, and the court determined that because of its interposition judgment was erroneously taken without common-law evidence of the plaintiff’s claim. In Lansing v. Stevens, 20 N. Y. St. Repi\ 320, a demurrer was also interposed and the court held that judgment taken without evidence was improper.

The charter of the city of Buffalo, providing for a municipal court in that city, contained practically the same provisions as are contained in the law of 1881 with respect to entering judgment by default upon a verified complaint, and that provision was construed in Humble v. McDonough, 5 Misc. Rep. 508, in which the court held an answer stricken out as sham by the justice was in fact a good answer and that the court erred in' striking it out and allowing judgment upon the verified complaint.

While the cases above referred to, at first blush - seem to hold that any sort of an answer or demurrer interposed to a verified complaint would prevent the rendering of judgment without proof, yet upon a careful consideration of the circumstances under which those cases arose it will be seen that none of them *634go so far as to say that a clearly frivolous answer, one which raises . no issue, shall he treated as a good answer for the purpose of preventing judgment being entered upon a verified complaint. When an answer is frivolous it must be treated as. a nullity and the plain-, tiff is entitled to judgment as though no answer had been inter-' posed. - If it raises no material issue by the denial of any facts set forth in the complaint or by the setting up of any new matter material to the action, it fails to perform its office as an answer, ' and it has no legal effect. If the contention of the defendant that any answer prevents the rendering of judgment upon a verified, complaint is true,- then a paper containing matter wholly irrelevant to the action might be 'interposed and labelled" an . answer and thus prevent the rendering of judgment. • , . ..

In the cases above considered bearing upon chapter 414 of the Laws of 1881, it will be observed that all' of them ,arose upon de-' murrer. A demurrer, to a 'complaint stands in much different relation to the action from a frivolous answer. Although the. demurrer may not be good, yet it forms a part of the record of the case and is entitled to remain in the case as a part of the ’record.' Farmers & Mechanics’ National Bank of Buffalo v. Rogers, 19 N. Y. St. Repr. 464.

I think that the legislature must have meant, in providing for'" the taking of judgments by default upon a claim for money only by the service of a, verified complaint with the summons, that a good answer must be interposed in order.to prevent the taking of the judgment, and. that.it did not mean that any answer, whether, good or bad,' would have that effect.: The judgment must-be affirmed, with costs.

Judgment affirmed, with costs.