Mussina v. Stillman ( 1861 )

By the Court.^*— Ingraham, J.

—The objection to .the falsity, of the allegations made in the answer should have been taken when the motion was made for leave to put in the amended answer. A copy of it was served, the plaintiff had the opportunity of seeing its truth or falsity, and he should then have objected to its being put in; not having done so, he is precluded afterwards from making a motion to strike it out.-

It is also a serious objection to such a motion, that it is founded on the examination of witnesses in the cause; and it in fact amounts to a trial of the case, if the court can be called upon to try whether an answer is true or not, according to the testimony of witnesses examined in the cause.

On looking at the answer, it appears that many of the denials are general. Where this is so, an answer will not he stricken out as false.

Although the order appealed from was not made on this ground, the motion should on that account have been denied.

The order appealed from should be affirmed with costs.

* Present, Clerke, P. J., Gould and Ingraham, JJ