Brotherton v. Downey
New York Supreme Court
This is an appeal from that part of an order made at a special term of this court held by Mr. justice Daniels, March 8, 1880, which strikes out paragraph 1 of the defendant’s answer as “ irrelevant and redundant.”
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This is an appeal from that part of an order made at a special term of this court held by Mr. justice Daniels, March 8, 1880, which strikes out paragraph 1 of the defendant’s answer as “ irrelevant and redundant.” “ Paragraph 1 ” of the defendant’s answer reads as follows: “ He denies, upon information and belief, each and every allegation contained in the complaint of the plaintiff Hugh Brotherton, excepting so far. as any or either of the allegations therein contained may be hereinafter admitted, denied or otherwise answered.” The order strikes out the whole of the above recited portion of…
1Opinion of the Court
Barrett, J. —
The form of denial was proper. If defendant had no personal knowledge upon the subject he could not unqualifiedly deny. If he had knowledge or information sufficient to form a belief he could not deny such knowledge or information. What then was he to do ? Clearly to deny upon information and the belief formed therefrom. Under the Code of Procedure the denial, whether founded upon personal knowledge or upon information and belief, was in form the same, that is, absolute. By the verification the defendant was permitted, in a great measure, to impress upon the pleading the…
2Cited by1 opinion
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