Alden S. Swan & Co. v. McNaughton , 149 N.Y.S. 935 ( 1914 )

Cohalan, J.

Upon the return day of the summons in this action judgment was rendered in favor of the plaintiff upon the ground that the answer was frivolous. The second, third and fourth paragraphs of the complaint set up allegations of a sale of goods, wares and merchandise to the defendant between the 6th day of January and the 24th day of July, 1913, at “ the agreed price and reasonable value ” of $331.29, and, except the sum of $150, that no part of the same had been paid. The answer is a denial of this allegation “ upon information and belief.” This answer was held to be bad by the court below, because it was. claimed the facts set forth in the complaint are presumptively within the knowledge of the defendant. No such presumption can properly be said to exist. Goods may have been sold and delivered to persons duly authorized to purchase the same by the defendant, of which he' may not have had the slightest knowledge or information; hence, the defendant’s denial of the purchase, upon information and belief, was perfectly legal. The same may also be said as to the allegation of the “ reasonable ” valué of the goods. The complaint was drawn so that the plaintiff could give proof, of the reasonable value of the goods, and the defendant might truthfully deny upon information and belief that the amount charged in the complaint was the reasonable value thereof. The answer was good and the judgment must be reversed.

Seabury and Bijur, JJ., concur.

Judgment reversed, new trial ordered, with, costs to appellant to abide event.