Ostrom v. Bixby
New York Supreme Court
TMs is a motion to strike out that part of the answer which sets up the statute of limitations as a sham defence, and inconsistent with the further defence set up in the answer. The complaint alleges that Jones, the assignor of plaintiff, signed with defendant a note made for defendant’s accommodation; that Jones subsequently paid the note, and thereby defendant became liable to pay the plaintiff as assignee and receiver of Jones.
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TMs is a motion to strike out that part of the answer which sets up the statute of limitations as a sham defence, and inconsistent with the further defence set up in the answer. The complaint alleges that Jones, the assignor of plaintiff, signed with defendant a note made for defendant’s accommodation; that Jones subsequently paid the note, and thereby defendant became liable to pay the plaintiff as assignee and receiver of Jones. The answer admits the making of the note, but denies that it was for the accommodation of defendant, and alleges that it was for Jones’ accommodation, and that it…
1Opinion of the Court
Bacon, Justice.
There has been considerable discussion as to what is a sham answer or defence—some judges holding that the word is not synonymous with/afee, but applies only to cases where the answer takes issue upon some immaterial averment in the complaint, or sets up new and irrelevant matter; but I am inclined to accept the definition of Justice Barculo, in Nichols agt. Jones, (6 How. 355,) that the essential element of a sham plea is its falsity, and that a false plea is necessarily a sham plea. But the falsity must be made clearly to appear, either necessarily and inevitably patent upon…
2Cited by3 opinions
- Piercy v. SabinCalifornia Supreme Court · 1858
- Bell v. BrownCalifornia Supreme Court · 1863
- Andreae v. BandlerNew York Supreme Court · 1899