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Note on the Forms of Denial.

The rights of the defendant in respect to going to issue are as follows: If he is in the first position, knowing the allegation to be true, or the third, having reason to believe it true, he is not entitled to put it in issue.

If he is in the second position, knowing it to be false, or in the fourth, having reason to believe it to be false, he is entitled to put it in issue.

If he is in the fifth position, being in ignorance and without reason for belief or disbelief, he is still entitled to put it in issue, for plaintiff must prove his case if there is no reason why defendant should admit it.

The statute for the purpose of enforcing these plain principles requires of defendant in respect of any allegation he desires to controvert, either a denial of the allegation or a denial of any knowledge or information 23 thereof sufficient to form a belief. Code Civ. Pro., § 200. This covers the second, fourth and fifth positions. But in order that plaintiff may know what the defendant who verifies the pleading is swearing to, a denial is declared by section 524 to be in legal effect a positive denial, upon personal knowledge (within the law of perjury) unless it is stated to be made upon the information and belief of the party.

It is clear, therefore, that a defendant not having knowledge or information sufficient to form a belief, should not deny upon information and belief, but should simply state that he has not knowledge or information sufficient to form a belief. If he is in this state of suspense and ignorance he cannot truly deny, for he does not know but that it is true; and the statute does not call upon him to deny. He traverses by duly stating his 24 inability to form any belief. If, on the other hand, he has information sufficient to form a belief that the allegation is false, he is entitled to deny it; but if he is to verify the pleading he must deny upon information and belief. Brotherton v. Downey, 21 Hun, 436, is therefore clearly right.

This conclusion is now fully established by Bennett v. Leeds Mfg. Co., 110 N. Y., 150.

But these principles do not sanction a pleader in saying that he answers on information and belief, and thereupon proceeding with unqualified denials, as was done in Pratt Mfg. Co. v. Jordan Iron Co., 5 Civ. Pro. R., 372. That decision was clearly right in condemning such pleading; but we do not think it can be deemed authority for the proposition that a denial upon information and belief is bad, a proposition which is clearly 25 unsound, and if enforced would require many defendants either to admit falsely or swear falsely.

Denials not positive. Under the statutory permission to put the allegations of the complaint in issue by denial "of any knowledge or information thereof sufficient to form a belief," the denial must in substance 'deny alike the possession of knowledge and the possession of information sufficient to form a belief, as to the matter of fact controverted, and must do this with sufficient distinctness to make a verification perjury if the deponent has either knowledge or information sufficient for the purpose of pleading.

Various departures from the statutory form have, therefore, been

Note on the Forms of Denial.

condemned, the reason undoubtedly being the door that will be open to 26 evasion by laxity in this respect.

Hence a denial of knowledge is not sufficient. Heye v. Bolles, 33 How. Pr., 266; First Nat. Bk. v. Clarke, 22 Week. Dig., 569.

An allegation that defendant "does not know of his information or otherwise" is insufficient. Sayre v. Cushing, 7 Abb. Pr. Rep., 371.

A denial of information sufficient to form a belief, saying nothing about knowledge, is insufficient. Elton v. Markham, 20 Barb., 343; Lloyd v. Burns, 38 Super. Ct. (J. & S.), 423; aff'd it seems in 62 N. Y., 651, without opinion.

A denial "for the want of knowledge to form a belief" is bad. Heye v. Bolles, 33 How. Pr., 266.

A denial of “knowledge or information sufficient to form a belief, 27 except information from" specified sources, such as documents, without stating what part of the allegation is excepted, or what the information is, admits the whole allegation. Cuyler v. Bogert, 3 Paige, 186.

A denial expressed in the alternative as "either upon his own knowledge or as having no knowledge or information sufficient to form a belief" is bad. Sheldon v. Sabin, 12 Daly, 84.

And a denial of knowledge or information sufficient to form a belief as to a specified paragraph, instead as to the truth of it, or as to the allegation therein, is bad. Bidwell v. Overton, 26 Abb. N. C., 402.

A denial of knowledge or information sufficient to form a belief “as to" a document stated in the complaint is not a denial of an allegation in the complaint that the statements in the document are true. People v. Fields, 58 N. Y., 491.

But a statement that "defendant has no knowledge or information sufficient to form a belief as to the truth of an allegation specifically referred to," or "as to any of the allegations in said complaint contained," is good. Grocers' Bank v. O'Rorke, 6 Hun, 18; Meehan v. Harlem Savings Bank, 5 id., 439.

But denial of knowledge or information sufficient to form a belief seems to be not yet lawful in the New York City District Courts. Steinam v. Bell, 7 Misc., 318.

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Matters actually or presumptively within deponent's knowledge. A denial of knowledge or information sufficient to form a belief, or a denial upon information and belief of matters which must have been once within 29 deponent's knowledge, and may be presumed to be still within his recollection (Sheldon v. Heaton, 78 Hun, 50), or of matters of public and accessible record relating to the subject and of which deponent ought to inform himself before pleading, may be bad. Austen v. Westchester Telephone Co., 8 Misc., 11. Compare cases cited in Abb. Br. on the Pl., p. 497, § 603; p. 502, § 609.

Tenses. A denial in the past tense or the present tense exclusively of a fact in the complaint alleged in either tense or both, may be a bad denial. Hand v. Rogers, 8 Misc., 79 (allegation of the complaint that the defendants were and still are partners; answer admitting that they are

Macauley v. Bromell & Barkley Printing Co., 14 Abb. N. C., 316.

30 and denying all that is not admitted, raises an issue on the question whether they were partners at the time past mentioned in the complaint). And therefore denies the same. When a denial of knowledge or information sufficient to form a belief is properly made, it is not necessary to add "and therefore denies the same." When the denial of knowledge, etc., is defective, it is not aided by such addition. Meehan v. Harlem Savings Bank, 5 Hun, 439; Sackett v. Havens, 7 Abb. Pr., 371, note; Flood v. Reynolds, 13 How. Pr. (N. Y.), 112.

Corporation cases. Since N. Y. Code Civ. Pro., § 1776 dispenses with proof "of the existence of a corporation party, unless the answer is verified and contains an affirmative allegation that the plaintiff or the defendant, as the case may be, is not a corporation," a positive denial, or 31 a denial of knowledge or information sufficient to form a belief as to whether the party is a corporation, is not sufficient. See note on putting corporate existence in issue, post.

T

MACAULEY v. BROMELL & BARKLEY PRINTING
COMPANY.

New York City Court, Special Term, 1884.

[Reported in 14 Abb. N. C., 316.]

1. Under Code Civ. Pro., § 524—which requires the verification of a pleading by a corporation to be made by an officer or agent with reference to his own knowledge, information or belief-a denial in an answer by a corporation is not to be struck out as frivolous, because expressed to be a denial upon information and belief.*

2. The case of Shearman v. N. Y. Central Mills, 1 Abb. Pr., 187, superseded.

* In Richards v. Frechel (decided in the same court in the same term), the same principle was applied as superseding the old rule that allegations presumably within the personal knowledge of the defendant could not be denied upon information and belief.

MCADAM, J. The complaint alleges that the plaintiff, at the request of defendant, sold and delivered to him goods to the value and agreed price of $97.43, no part of which has been paid." The answer, upon information and belief, denies each and every allegation in said complaint contained." Whether this answer contains a legal form of denial, is the question to be determined.

An answer in the above form was held good in Brotherton v. Downey (59 How. Pr., 206); Stent v. Continental Bank (5 Abb. N. C. 88), and in Metraz v. Persall (id., 90). Where the charges made are, as in this case, presumably within the personal knowledge of the defendant, this form of denial was not formerly allowed. But the cases cited, and that of the Grocers' Bank v. O'Rorke (6 Hun, 18), seem to countenance it.

It follows that the motion for judgment on the answer as frivolous must be denied. No costs.

A denial upon information and belief of an alleged public record, to which the party pleading is a party, may be so struck out. Austin v. Westchester Telephone Co., 8 Misc., 11. It may be otherwise of private acts of the party many years past. Sheldon v. Heaton, 78 Hun, 50.

Macauley v. Bromell & Barkley Printing Co., 14 Abb. N. C., 316.

MCADAM, J. The answer, "upon information and belief, 1 denies each and every allegation of the complaint, except the allegation of the defendant's incorporation." The plaintiff moves for judgment upon the ground that the answer is sham and frivolous. The answer is verified by the treasurer of the corporation, and cannot be stricken out as sham (45 N. Y., 281, 468).

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It is said to be frivolous because a corporation cannot deny an allegation" upon information and belief." The case of Shearman v. New York Central Mills (1 Abb. Pr., 187), decided under the 2 old Code, is relied on by the plaintiff as an authority against the sufficiency of the answer. It is said in that case that a corporation is an artificial being which from its nature can have no knowledge or belief on any subject, independent of the knowledge or belief of its agents. It is a mere legal entity. It neither knows nor thinks." Exactly so. But the officers and agents of the corporation must verify the answer, and must, under the New Code, do so truthfully under the pain and penalty of a possible prosecution for perjury. The case cited intended to hold a corporation to the strict form of denial 3 required (under similar circumstances) from a natural person. It did not intend to discriminate against corporations, nor to require from them any different form of plea than the Code requires from individuals.

Testing that case by this rule, and applying the decisions under the New Code to the form of the answer, it must be held good (see 59 How. Pr., 206; 5 Abb. N. C., 88, 90; 6 Hun, 18). Under these decisions the person verifying the pleading "is permitted in a great measure to impress upon the pleading the operation of his mind," that he may make the verification conscientiously.

In the light of these cases the form of denial used in the answer, though "upon information and belief," is in accordance with the present practice, and creates a triable issue of fact, which must be disposed of by a trial in the regular way.

It follows that the motion for judgment must be denied. No

costs.

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Fleischman v. Stern, 90 N. Y., 110.

1

2

3

FLEISCHMAN v. STERN.

New York Court of Appeals, 1882.

[Reported in 90 N. Y., 110.]

1. Statements in an answer merely giving a different version of the transactions from that given in the complaint are not a denial.

2. Under an answer not denying any allegation of the complaint, but stating as the real transaction a transaction different from that set up in the complaint, defendant may be held to have admitted the transaction he has not expressly denied; and cannot prove that which he has alleged as being inconsistent with and therefore disproving the complaint.

3. An admission of a material fact by not denying it is as conclusive upon defendant as an express admission.

Action on a promissory note.

The plaintiffs, merchants, brought this action upon a promissory note of $1,000, bearing date October 13, 1887, made by Z. Stern & Co., payable three months after date, to the order of the defendant, and indorsed to the plaintiffs, in payment of an indebtedness to them, of about $1,000, for goods theretofore purchased by defendant. These facts were stated in the complaint.

The defendant denied none of them, but pleaded that the note was made for his accommodation, and indorsed to the plaintiffs under an usurious agreement, whereby they were to give him $941.92 for the note, and a credit on their books for $35.83 more, thus taking to themselves $22.25; the difference between the face of the note and these sums, being $7.10, in addition to the legal interest while the note should be running to maturity; and demanded, as an affirmative judgment, that the complaint be dismissed and that "he recover his costs and disbursements and an allowance of five per cent. on the plaintiffs' claim."

DANFORTH, J., [after stating the above facts]: It is obvious that this demand by one who, if the contract was illegal, was himself a party to it, has nothing to commend it to the court, and there was no reason why it should not have been denied under the provision of the Code that "each material allegation of the complaint not controverted by the answer must, for the purposes of