Grocers' Bank v. O'Rorke

Davis, P. J.: The court below struck out the defendant’s answer as frivolous, and gave judgment under section 247 of the Code. The second part of the answer is in these words: “ Second. The defendant, further answering the complaint, avers that he has no knowledge or information sufficient to form a belief as to the truth of any of the allegations in said complaint contained.” This was a general denial of all the allegations of the complaint, under section 149 of the Code, which provides that the answer must contain 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. It has been held in various cases that an answer alleging that defendant has no knowledge or information sufficient to form a belief, makes a complete denial. (Flood v. Reynolds, 13 How., 112 ; Townsend v. Platt, 3 Abb., 325 ; Leach v. Boynton, id., 1; Livingston v. Hammer, 7 Bosw., 670.) [21] In Wayland v. Tysen (45 N. Y., 281), it was held that the court had no power to strike out, as sham, an answer consisting of a general denial under the Code, and in Strong v. Sprout (53 N. Y., 497), and Thompson v. Erie Railroad Oompcmy (45 N. Y., 468), it was held that the court had no power to order a judgment upon part of an answer as frivolous, when there was a part held good, and that the remedy, under section 247 of the Code, was only available when the answer as a whole was frivolous, and not where parts were frivolous and other parts good. It is not necessary therefore to determine whether the first part of the answer, if it stood alone, might not have been properly stricken out and judgment ordered because that part forms a portion of an answer which does not contain what the act and the authorities declare to be a general denial. The cases upon which the learned justice in the court below proceeded, were necessarily overruled by the Court of Appeals, in Wayland v. Tysen (above cited). We are constrained, therefore, to the opinion that the court below erred, and the order must be reversed, with ten dollars costs besides disbursements, and the motion denied. Daniels and Brady, JJ., concurred. Ordered accordingly.