(78 Hun, 50.)

#### SHELDON v. HEATON.

(Supreme Court, General Term, Third Department.

May 20, 1894.)

Pleading—Denial on Information and Belief.

In an action on a note given 30 years before, a denial by defendant of “any knowledge or information sufficient to form a belief as to each and every allegation in the complaint contained” will not be stricken out as frivolous, as denials on information and belief are authorized by Code Civ. Proc. § 500, subd. 1.

Appeal from special term, Clinton county.

Action by John J. Sheldon, as administrator of Mary E. Sheldon, deceased, against Rufus Heaton. From an order striking out the denial in defendant’s answer as frivolous, defendant appeals.

Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

James B. Stearns (G. H. Beckwith, of counsel), for appellant.

Wilmer H. Dunn, for respondent.

*276MAYHAM, P. J.

This action was prosecuted to recover upon an alleged writing, claimed to have been executed by the defendant, in the following words and figures:

> “$178.33.

> “Due Airs: M. E. Sheldon, one hundred and seventy-eight 33-100.

> “Rouse’s Point, April 29, 1803. R. Heaton.”

The complaint alleges that the sum specified in the duebill above set out was deposited by Mrs. Sheldon, now deceased, with the defendant, at the date of that instrument, to keep for her, and that on the 20tli of June, 1893, plaintiff, as administrator, demanded payment of the same of the defendant, which was refused. The answer first denied the complaint in the following language: “The defendant denies any knowledge or information sufficient to form a belief as to each and every allegation in the complaint contained.” The answer also sets up the statute of limitations, and also, separately, payment, satisfaction, and discharge of all indebtedness to the plaintiff. The plaintiff moved to strike out this denial as frivolous, and also inconsistent with each and all of the succeeding allegations. The motion was granted on the ground that the denial was frivolous, with costs, and the defendant appeals.

More than thirty years had intervened between the date of the due-bill and the demand,—a period in which the defendant might well have forgotten the giving of the note, if genuine, or, having no recollection of such an event, might well -hesitate to trust his memory to make a positive denial. Under such circumstances he should not be compelled to .admit the truth of the complaint by failing to deny, nor should he be compelled positively to deny, when, by a failure of memory, it might turn out that his denial was false. To relieve a defendant from such a condition, the legislature provided for a verification in substance like the one under consideration. Subdivision 1 of section 500 of the Code provides that the answer of the defendant must contain: “First, a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” This provision of the Code prescribes the method by which the defendant may put in issue the allegations of the plaintiff, and thus put him upon his proof. Failing to make such denial, the defendant is deemed to have admitted the allegations of the plaintiff’s complaint, and relieved him from making proof thereof. In whichever form the denial is made, it presents an issue such as was raised by the plea of general issue before the Code. Such an answer cannot be stricken out on motion as frivolous. Thompson v. Railway Co., 45 N. Y. 468; Wayland v. Tysen, Id. 281; Abernethy v. Knight, 50 N. Y. 673; Jones v. Ludlum, 74 N. Y. 61. Kone of the cases to which we have been referred decide that an answer denying any knowledge or information sufficient to form a belief of the truth of the material allegations of the complaint can be stricken out as frivolous. It is only when the allegation of want of information relates to some affirmative allegation of defense not putting in issue the allegations of the complaint that it can be stricken out as frivolous.

*277Nor is the objection that the other portions of the answer are inconsistent with the denial a good ground for striking out the same. Section 507 of the Code of Civil Procedure authorizes a defendant, in the manner therein named, to set up as many defenses and counterclaims as he may have, and, as we have seen in Woods v. Reiss (Sup.) 29 N. Y. Supp. 263, the denial cannot be stricken out as inconsistent with the other defenses. Bruce v. Burr, 67 N. Y. 237; Goodwin v. Wertheimer, 99 N. Y. 149, 1 N. E. 404; Societa Italiana di Beneficenza v. Sulzer, 138 N. Y. 468. 34 N. E. 193. The principle seems to be settled in these cases that a denial will not be stricken out because it is inconsistent with other defenses interposed in an answer. For these reasons, we think that the order of the special term should be reversed. Order reversed, with $10 costs and printing disbursements, and $10 costs of motion at special term, to the defendant.

HERRICK, J. I concur. See Bank v. O’Rorke, 6 Hun, 19; Becker v. Weisner, 22 Alb. Law J. 156.

PUTNAM, J., concurs.