Walsh v. Barrett

Clarke, J.: Plaintiff brings this action to recover damages for being negligently run down by one of defendant’s trucks. The amended complaint, in paragraph 6 alleges “That on said 16th day of December, 1911, the said Adams Express Company, of which the said William M. Barrett was and is the president, was the owner of the certain automobile truck, which, at the time the plaintiff sustained the injuries hereinafter alleged was being-driven in a northerly direction along said Fifth Avenue and under the control,, management and direction of said Adams Express Company, its servants, agents and employees, and which said automobile truck struck plaintiff.” The amended answer, verified by William M. Barrett, alleges: “Second. Denies that he (has any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in Articles V and VI of the amended complaint. ” The order appealed from requires the defendant to .“ separately deny or admit the following allegations of paragraph ‘Sixth’ of the amended complaint in this action: 1. That on December 16th, 1911, William M. Barrett was the [463] president of the Adams Express Company.” The 2d paragraph of the amended complaint alleges that fact, and, not being denied in the answer, is, therefore, admitted. It is idle to ask the defendant to deny or admit it again. Further, in the 6th paragraph of the complaint it is merely a descriptive clause. The order further requires the defendant to admit or deny: “ 2. That on December 16th, 1911, the Adams Express Company was the owner of the certain automobile truck which struck the plaintiff. 3. That the said truck at the time it struck the plaintiff was being driven in a northerly direction along Fifth Avenue. 4. That at the time it was under the control and management of the Adams Express Company, its agents, servants and employees.” It further provided that the 2d clause of the answer should be stricken out. The effect of this order is to deny to the defendant the right to interpose an answer in the precise form allowed by section 500 of the Code of Civil Procedure. Such provision is appropriate to the case at bar because it is unreasonable to require the president of such a company as the defendant with a large number of servants operating and controlling many vehicles to swear specifically one way or the other as to such details of the plaintiff’s cause of action. Kirschbaumv. Eschmann (205 N. Y. 127), cited by respondent, does not apply. In that case there were corporate acts having to do with the passage of resolutions, the issuing of notes, the execution of underwritings and the making of written agreements which were presumptively within the knowledge of the corporation and its officers, because executed and acted upon by them. Here, on the contrary, is a negligence case and the defendant is called upon to answer or deny whether a truck was going in a particular direction on a particular street at a particular time. It seems to me that no such pleading can be required. The rule which has been applied when a man denies that he has any knowledge or information sufficient to form a belief as to his own residence (Olsen v. Singer Mfg. Co., 143 App. Div. 142) or as to papers on file in public offices (Rochkind v. Perlman, 123 id. 808) has no application. The order appealed from should be reversed, with ten dollars [464] costs and disbursements, and the motion denied, with ten dollars costs to the appellant. Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.