Opinion
March, 1920.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The answer denies that the deed from Sheindelman and Parshelsky to Samuel Palley has been lost or destroyed. The loss or destruction of the instrument is an essential fact, to be pleaded as part of plaintiff's cause of action. This denial, therefore, prevents judgment being taken on the pleadings. The complaint seems to be brought under section 1638 of the Code of Civil Procedure, although an action to compel defendants to execute a new deed might be maintained under the equity powers of the court without resort to that section. ( Kent v. Church of St. Michael, 136 N.Y. 10.) In an action brought under that section an allegation of possession of the property is essential to plaintiff's cause of action. Such an allegation is made in this complaint and denied in the answer, and for that reason also judgment cannot be taken. We think also that under the special circumstances of the case the denial of knowledge or information that defendants gave a deed ten years ago or more cannot be treated as sham, and is presumptively false only, and plaintiff's remedy is under the doctrine of Kirschbaum v. Eschmann ( 205 N.Y. 127) and Harley v. Plant (210 id. 405). The defense of new matter is insufficient in law upon its face. Jenks, P.J., Mills, Putnam, Blackmar and Kelly, JJ., concur.