Sanchez & Haya Co. v. Hirsch

MacLean, J. Bor answer the defendant alleged, first, that she had ' no knowledge or information sufficient to form a belief as to the truth of the allegations of the complaint, excepting she admitted she had not paid the sum demanded, and, secondly, she alleged for a separate and distinct defense, that at the time of the commencement of the action, and for a long time prior thereto, there was pending in the Supreme Court of the state of New York an action brought by the same plaintiff against her on the same alleged cause of action set forth in the complaint, which action is still undetermined’ and is now af issue. The court struck out the answer “ because the denials therein are stated to be on information and belief, and on the insufficiency of the second defense.” This was proper as to the first defense, for an answer may not be interposed in the Municipal Court in that form. Code Civ. Pro., § 2938; Consol. Act,.§ 1347; Lambert v. Hoffman, 20 Misc. Rep. 331, 332. The second defense should not have been stricken out, as it would be good, if proven.- Code Civ. Pro., § 498. The judgment of the Municipal Court should be reversed, with costs to the appellant. Fbeedman-, P. J., and Leventbitt, J., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.