Fales v. Hicks , 12 How. Pr. 153 ( 1855 )

Harris, Justice.

According to the allegations of the complaint, the defendant, Joseph B. Hicks, was the second endorser of the note in suit, and is to be presumed to have transferred it to the plaintiff. Whether he did endorse the note or not, or whether it was transferred to the plaintiff, may be presumed to be within his own personal knowledge. If he would answer these allegations, he should, therefore, admit or deny them positively. To say, in respect to the question whether or not he endorsed the note, that he has no knowledge or information sufficient to form a belief on the subject, is obviously an evasion. If, for any reason, he could not answer the allegation positively, that reason should have been stated. If, as was suggested by counsel upon the hearing of the motion, the defendant who made the answer doubted whether the note upon which the action was brought was the same note he had endorsed, he should have taken measures to satisfy himself upon this point before answering.

It will scarcely do to sanction the mode of answering adopted in this case, because the defendant is able to say that the note upon which the suit is brought may not be the same instrument he executed. So, in respect to the transfer of the note, the defendant who has answered, being the last endorser, is, presumptively, the party who transferred the note to the holder. He ought either to admit or deny the transfer, or show how it happens that he has no knowledge or information on the subject. (See Edwards agt. Lent, 8 How. 28; Richardson agt. Wilton, 4 Sand. 708; Shearman agt. New-York Central Mills, 1 Abbott, 187; Thorn agt. The Same, 10 How. 19; Wesson agt. Judd, 1 Abbott, 254; Mott agt. Burnett, 1 Code Rep. N. S. 225; Hance agt. Remming, id. 204.)

The motion must be granted ; but the defendant has made an affidavit of merits, and it may be that the answer was framed under a misapprehension as to what was required: I think, therefore, that the defendant should be allowed to answer anew upon such terms as shall be just. I know it has been said by a learned judge, that no power is given to a judge, upon an application for judgment under the 247th section of the Code, to allow an amendment. (Shearman agt. The New-York Central Mills, 1 Abbott, 190.) But I can see no objection to granting such a motion conditionally. The party prejudiced by a frivolous pleading is authorized to apply to a judge, either in or out of court, for judgment, and the judge, either in or out of court, is authorized to give judgment.

If the application should be made in court, it certainly would not be doubted that the party whose pleading should be found defective, might be relieved on terms. The same jurisdiction to hear the application is, in this instance, conferred on the judge at chambers; and he may, it seems to me, grant the same relief he would if he had heard the same case in court.

The plaintiff is entitled to judgment on account of the frivolousness of the answer, but with leave to the defendant, Joseph B. Hicks, to serve a new answer within five days after notice of this decision, upon payment of the costs of the motion, and stipulating to admit due service of notice of trial for the ensuing Rensselaer circuit.