Farmers & Mechanics' Bank v. Smith

E. Darwin Smith, Justice. This is a motion to strike out the answer of the defendant Smith, as sham and false. Whatever power the court possessed and exercised before the Code, on the subject of purging pleadings of sham, frivolous and impertinent matter, it still possesses. Section 152 of the Code confessedly confers no new power, but is rather declaratory of the power possessed by the court, as then exercised. The right construction of this section therefore defines the authority and practice of the court, as understood and received by the courts, and by the profession at the time of the enactment of the Code. Section 152 is as follows: “ Sham and irrelevant answers and defences, may be stricken out, on motion and upon such terms as the court may, in their discretion, impose.” Two classes of answers are here specified, sham, and irrelevant. So far as relates to irrelevancy, the section retains the old practice of the courts, of expurgating pleadings of redundant and irrelevant matter, as practiced in the court of chancery, upon exceptions for irrelevancy, and in the supreme court upon motion. Under the old practice, a sham plea was a special plea setting up new matter and tendering a fictitious issue. The courts were accustomed to strike out such pleas, as tending to embarrassment, delay and vexation to the parties, and also, for the reason, that it was unfit for the court to be engaged in the trial of unreal issues. The court sought to protect its own dignity and self respect, by expunging all such sham pleadings from the record, and bringing parties to the trial of the actual matters in dispute. A sham plea was one presenting, apparently, a good defence, but which was, in fact, an ingenious and subtle contrivance, false and feigned in its essential particulars. Falsity was and is an essential element in a sham pleading; but a false pleading is not a sham pleading, unless it also consists of new matter and tenders an issue, upon some new allegations. The general issue was, therefore, never stricken out, as a sham pleading; because it set up no new [332] matter, and consisted of a simple denial of the plaintiff’s cause of action, as stated in his declaration or complaint. It is true, we have no general issue under the Code, but it allows what is in part equivalent, a general or specific denial of the allegations of the complaint. An answer confined to such denials cannot be sham under any definition of that term ever received or recognized by the courts or the profession. (14 Barb. 393; 7 How. 59; 10 id. 445; Grant agt. Paine, 12 id. 500; 1 Abbott, 116,) The answer in this action is in substance nothing but a denial of the plaintiff’s cause of action. The statement that the note has been altered, if the signature thereto is genuine, is nothing more than a qualification of his general denial of its execution by the defendant. It is not new matter within the meaning of the rule relating to sham pleas. Within the above definition or description of a sham pleading, the defendant’s answer clearly is not such a pleading, and cannot be stricken out as sham. But this motion is also to strike out this answer as false. Section 152, confers no authority to strike out pleas simply as false—nor was there any such practice before the Code. The provision is to strike out sham answers, &c. The truth of pleadings not sham or frivolous, is to be tried by another tribunal, and not upon affidavits. Some distinction has been made in the cases between verified and unverified pleadings. I agree with my brother Strong, in The Manufacturers' Bank agt. Hitchcock, (14 How. 406,) that there is no well founded ground for the distinction. An answer may be frivolous or sham, verified or unverified, and may be struck out as such, in cases of a sham answer, or overruled as frivolous under section 247. If a motion be made to strike out an answer, setting up new matter as sham, verified or unverified, and the motion is not opposed, or is not met by affidavits, showing that it was put in in good faith, together with an affidavit of merits, it may properly be, and should be, struck out as sham. In the' case of The Broome Co. Bank agt. Lewis, (18 Wendell, 565,) the court say: “The defendant in this case appears by his counsel to resist this motion, but he [333] produces no general or special affidavit of merits, makes'no pretence that his pleas are true, but on the contrary, by his silence, admits that they are false.” In this case there were three formal special pleas, and they were rightly struck out for the reason above assigned. They were truly sham pleas. But when the defendant substantially re-affirms the truth of his answer, and makes an affidavit of merits, I think the answer should not be struck out. (Munn agt. Barnum, 1 Abbott, 282.) The remedy for false swearing in such cases is with the grand jury, and the trial of the truth or falsity of the pleading belongs to another forum. This motion must be denied, but as I think, upon the merits the plaintiff had reasonable ground to make it, in the uncertain state of the practice, and that the defendant is really laboring under some strange mistake or misconception in regard to the making of the note; it should be without costs, and it is so denied without costs to either party.