Thompson v. Erie Railroad (45 N.Y. 468, 1871)

Folger, J. First.

Had the Special Term the power to strike out the first defence set up in the answer as sham % A sham answer is one that is false, and these words, as applied to an answer, are synonymous. (The People v. McComber, 18 N. Y., 320.) A defence is sham, in the legal meaning of the term, which is so clearly false in fact that it does not in reality involve any matter of substantial litigation. (Id.) The first defence set up in the answer is of two parts. The second part avers that “ the affairs of the defendant are managed by seventeen directors, and the plaintiffs have not asked from any of the said directors any accounting in respect to the matters set forth in the complaint.” We find nothing in the papers which shows that this allegation is false.

It is undoubtedly true. It could not, therefore, be stricken out as sham. For although it may not involve any matter of substantial litigation, it. is not because it is clearly false in fact. It will be noticed, however, as we progress, in its character as frivolous or irrelevant.

The first part of the first defence is a general denial of certain material allegations of the complaint.

We have held, in Wayland v. Tysen, decided Ante p. 281, that a verified answer, which interposes a general denial to the complaint, is tantamount to a plea of the general issue under the former system of practice at law; that such answer gives to the defendant the right to require the plaintiff to establish by proof all the material facts necessary to show his right to a recovery; and that it cannot be stricken out as sham, although shown by affidavits to be false. “ This was not upon the ground that a false plea was not sham, but upon the ground that a party, making a demand against another through legal proceedings, was required to show his right by cconmon-law evidence, and that ex jpcwte affidavits were not ■such evidence.”

“When the general issue under the former practice was,” and a general denial under the present practice is, “ interposed as a defence, the party had,” and has “ a right, to a trial by jury, which is secured to him by the Constitution (art. 1, § 2).” In Wayland v. Tysen the answer was a general denial of the whole complaint. In the case before us, the general denial of the answer is of but a portion of the complaint. Many of the averments of the complaint are admitted, there being no denial of them in the answer. The defendant, it would appear, did not seek to controvert them, and denied, as it might (Code, § 149), the material allegations of the complaint, which it did care to controvert. This section permits “ a general * * * denial of each material allegation of the complaint controverted by the defendant.” As to those allegations thus denied, the answer is as fully a general denial as is an answer denying the whole complaint a general denial of all its allegations. It puts fully in issue'the allegations which are denied, and demands of the plaintiff that he make proof of them. The whole stress of the controversy may be upon the truth of these allegations, and all other averments he no more material than as inducement.

The allegations denied may he so material as that, without establishing them, the plaintiff must entirely fail in his action. A general denial of but these allegations does then so stand in the way of the plaintiffs as that it must be met and overcome by proof. And such proof must in such case, as well as in that of a general denial of the whole complaint, be the common-law proof, which, as was held in Wayland v. Tysen, the defendant has the constitutional right to require.

But it may be said that such is the case only in an action seeking relief, according to the rules of the common-láw, as was the case above cited. And, indeed, it has been held (as in Sheppard v. Steele, 43 N. Y., 52), that in an action seeking relief according to the rules of equity, the provision of the Constitution above referred to does not apply. The right of a party to a trial by jury, as there guaranteed, is “in all cases in which it has leen heretofore used.” As courts of equity did not theretofore use the trial by jury, no right is violated when an action seeking relief from the equity power of the court is heard without the aid of a jury. But though the distinction is of necessity still kept up between equitable and legal grounds of claim or defence, they are administered upon by the same court, and in the same form of action, and with the same mode of pleading. And whether the complaint sets up a claim formerly cognizable by a court of law, or one entertained only in a court of equity, the answer follows the same form. The issue in the action is arrived at in the same mode of allegation. A general denial is the same in either case, and the same rules of practice must apply to it. If it is equivalent to a general issue and puts the plaintiff to the proof of his cause of action in the one case, it does in the other. And if it may not be stricken out as sham, because it is a general denial, in the one case, it may riot in the other. And as in the one case, the general denial requires of the plaintiff a trial and the proof of his demand before a jury, so in the other, the general denial requires of him a trial and the proof of his demand by-the production of his witnesses before the proper tribunal in the presence of the defendant, subject to his power of cross-examination. In neither case can affidavits taken ess parte out of court determine the issue.

But it is claimed that the first part of the first defence of the answer is a denial by way of negative pregnant, and that such defect in an answer can only be reached by a motion, under section 152 of the Code, to strike out the denial as sham. If this were so (i.