Opinion
May Term, 1896.
Menken Brothers, for the appellant.
Alexander Rosenthal, for the respondent.
Present — BARRETT, RUMSEY, WILLIAMS, PATTERSON and INGRAHAM, JJ.
The defendant Brown, as one of many underwriters upon a policy of insurance, was sued for the proportionate amount of a loss sustained by the plaintiff, and for which proportionate amount it is claimed that the defendant Brown was generally liable. He interposed an answer, stating that he had "no knowledge or information sufficient to form a belief as to all the allegations contained in the plaintiff's complaint herein." Upon motion of the plaintiff this answer was stricken out as frivolous, and judgment was ordered against the defendant Brown for the amount demanded in the complaint. From that order the defendant appeals.
The answer was authorized by the terms of section 500 of the Code of Civil Procedure, and puts in issue every allegation of the complaint. It is claimed by the respondent that as the first subdivision of the section of the Code referred to requires the answer of a defendant to contain a general or specific denial of each material allegation of the complaint controverted by the defendant, or of knowledge or information thereof sufficient to form a belief, the pleading now before us is insufficient. The answer, in substance, contains an averment equivalent to a denial of any knowledge or information sufficient to form a belief as to each and every material allegation of the complaint, for the statement of want of knowledge or information is made with reference to all of the allegations, and that necessarily includes each one of such allegations, and it is hypercritical to give any other construction to the answer. It is suggested that the use of the word "all" may furnish the means of pleading evasively, which in certain cases may be true, but there is no mistaking the force of the word in this answer, which is clearly intended to put the plaintiff to proof of each and every allegation contained in the complaint, that is, of the plaintiff's whole case.
The order must be reversed, with ten dollars costs and disbursements, and the motion to strike out the answer and for judgment denied, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.