Summary
In Hidden v. Godfrey (88 App. Div. 496) the thought of the court was directed to the question whether the denial of knowledge is equivalent to the denial of any knowledge. So in each of the other cases, the question considered by the court related, not to the conjunctive character of the denial, but to other criticisms made upon the pleading.
Summary of this case from Curran v. ArpOpinion
December Term, 1903.
Josiah Canter, for the appellant.
William D. Gaillard, for the respondent.
The complaint herein was the usual one in an action to foreclose a mortgage. The answer of the defendant Van Dyke was a denial in the following words:
"Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs I, II, III, IV, V and VI (comprising all the essential paragraphs) of the complaint."
Section 500 of the Code of Civil Procedure provides that the answer must contain "a general or specific denial of each material allegation of the complaint * * * or of any knowledge or information thereof sufficient to form a belief."
The object and purpose sought by this latter form of denial is to permit one who has not sufficient knowledge or information to form a belief as to whether the allegations of the complaint are or are not true, to put the plaintiff with respect to such allegation to his proof. Cases can be found wherein it has been held that where the defendant avails himself of this form of pleading, the provisions of section 500 of the Code must be complied with literally and strictly. We think, however, that the weight of authority, as well as reason, is in favor of requiring not a literal but a reasonably strict compliance with the terms of this section of the Code. Here the language of the denial follows the Code provision except in the particular that it omits the word "any," but as the greater included the less, a denial of "knowledge or information" includes a denial of "any knowledge or information."
We think, therefore, that there was not only a substantial but a reasonably strict compliance with section 500 of the Code of Civil Procedure. As a denial in this form is equivalent to a general denial which puts in issue the allegations of the complaint at which it is directed, we do not think it can be declared frivolous, and for that reason we think that the order entered was erroneous and should be reversed, with ten dollars costs and disbursements, and the motion for judgment on the answer as frivolous should be denied, with costs.
VAN BRUNT, P.J., PATTERSON, McLAUGHLIN and LAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for judgment on the answer as frivolous denied, with costs.