Livingston agt. Finkle and others, 8 How. Pr. 485

Harris, Justice. In authorizing a sham answer or defence to be stricken out, the framers of the Code have but adopted the former practice. See Brewster agt. Bostwick, (6 Cowen, 34,) and cases there cited. The rules applicable to such defences, before the adaption of the Code, are equally applicable now. One of these rules was, that the plea of the general issue would never be stricken out as false. The reason which has sometimes been assigned is, that the defendant has the right to put the plaintiff to the proof of his allegations. Mier agt.

Cartledge, (8 Barb. 75.) But I am not prepared to admit that this is the true foundation of the rule. It is rather because the plea of the general issue asserted nothing, and could not, therefore, with any proper regard to the meaning of terms, be adjudged to he false. It was but a denial of what the plaintiff had asserted.. It charged merely that the pleading, to which it was an answer, was false.

Although, strictly speaking, there is no such thing as the general issue, under the present system of pleading, yet the general denial of the allegations of the complaint, as authorized by the present Code, is, in most respects, like it. Such general denial, like the general issue, puts the plaintiff to the proof of his entire cause of action, as he has alleged it in his complaint.

Under the general issue, the defendant, after the plaintiff had made a prima facie case against him, might pro-. ceed to prove almost any thing tending to show that, when the action was brought, the plaintiff had no subsisting cause of action. This he probably would not be allowed to do upon a ' general denial under the Code. In such a case the only thing at issue would be, the truth of the matters alleged in the complaint. In respect to the question now under consideration, the two kinds of defence are not distinguishable. Neither can be stricken out as false, because neither asserts any thing.

No instance can be found in which such a negative pleading has been adjudged to he false. “ The practice of striking out sham answers and defences,” says Monell, “ was never applied to a pleading which, without alleging new matter, merely denied some allegation in the pleading -which it purported to answer.” (1 Monell's Pr., 2d ed. 588;) and see White agt. Bennett, (7 Howard, 59.) The only cases cited by the plaintiff’s counsel in support of this motion were Mier agt. Cartledge, (8 Barb. 75,) and Nichols agt. Jones, (6 Howard, 355.) The former of these cases, I had occasion to examine in White agt.

Bennett, above cited. It is evident, that the learned judge who pronounced the opinion in that case, thought an answer which merely denied some or all of the allegations of the complaint might be stricken out as false. But the question was not before the court, and of course, was not decided. Nor is there any thing in the opinion of Mr. Justice Barculo, who decided the case of Nichols agt. Jones, which leads me to suppose that he concurs in the views of Mr. Justice Edmonds, in relation to a pleading like that in question.

It was held, in that case, that a part of'the answer was frivolous, and that the plaintiff was entitled to judgment upon that part of the complaint to which this frivolous defence had been interposed. I am inclined to think the decision itself was wrong. I do not understand that a party can obtain judgment under the 247th

section of the Code, when a part only, of the answer is adjudged to be frivolous. But, in the views of that distinguished judge, in relation to the office of the different provisions of the Code, to wdiich he refers, I entirely concur. I have thought it worth while to re-examine this question, and to reiterate some of the views expressed in White agt. Bennett, above cited, for the reason that I have observed that practitioners, relying upon the authority of Mier agt.

Cart-ledge, have, not unfrequently, sought to strike out, as false, pleadings of the negative character of that which is the subject of this motion: Such applications have, I think, been very generally unsuccessful. There cannot be a doubt, in this case, but that the allegations of the complaint are true. The affidavit upon which this motion is founded, puts the matter beyond question. But it was the fault of the plaintiff that the defendant was enabled to interpose a pleading which should put her to the proof of all she has alleged in her complaint.

She might, by verifying her own pleading, have required a verified answer from the defendant. It is not likely he would have sworn to an answer like t^at he has now interposed. If he had, then, even according to the doctrine of Mr. Justice Edmonds, the pleading would have been beyond the reach of the Court.

Satisfied, as I am, that the defendant has really no defence to the action, it is with some reluctance that I find myself obliged to deny the motion, and although I ought, perhaps, to award to the defendant the costs of the motion, absolutely, yet, under the circumstances, I think I may be justified in directing that the costs of opposing the motion abide the event of the suit. I shall direct that the order be so entered.