Sammet v. Monsheimer 27 N.Y.S. 279

SAMMET v. MONSHEIMER.

(Supreme Court, General Term, First Department.

January 12, 1894.)

Pleading—Answer—When not Frivolous.

In an action on a note alleged to have been made and indorsed by defendant, and delivered to plaintiff’s predecessor in title, and payment thereof refused, the answer is not frivolous where it denies any knowledge or information as to the delivery and transfer, or as to the demand and refusal of payment, except that defendant is informed and believes that a part payment had been made, and alleges that the note was accommodation paper, that it was diverted from its original purpose, and that defendant is informed and believes that plaintiff had notice thereof.

Appeal from special term, New York county.

Action by Joel Sammet against Louis Monsheimer on a promissory note. From an order striking out the answer as frivolous, defendant appeals. Reversed.

The complaint is as follows:

The complaint complains, and alleges: (1) That at the city of New York, and on or about the 22d day of March, 1893, the defendant made his certain promissory note in writing, dated on said day, wherein and whereby he promised to pay to the order of himself, two months after the date thereof, the sum of two thousand dollars, at -the Bowery Bank, in the city of New York. (2) That thereafter the same was duly indorsed by the said defendant, and for a valuable consideration, before maturity, delivered to E. Frank & Bro., who thereafter, before maturity, for a valuable consideration, duly indorsed the same, and delivered the same so indorsed to this plaintiff. That this plaintiff is still the lawful owner and holder thereof. (3) That when the said note became due and payable the sanft was duly presented for payment at the place where the same was made payable, and payment thereof demanded, which was refused, whereupon said note was duly protested for nonpayment, of all of which due notice was given to this defendant and the said E. Frank & Bro. (4) That no part of said note has been paid. Wherefore, the plaintiff demands judgment against the defendant for the sum of $2,000, with interest thereon from May 25, 1893, besides the costs of this action.

The answer is as follows:

The defendant, for answer to plaintiff’s complaint, shows to this honorable court: (1) He denies that he, for a valuable consideration, indorsed and delivered to E. Frank & Bro. the note alleged in the complaint. (2) He, except as hereinafter otherwise alleged or shown, has not any knowledge or information sufficient to form a belief as to the allegation that E. Frank & Bro., for a valuable consideration, duly indorsed said note, and delivered the same, so indorsed, to plaintiff, or that plaintiff is the lawful owner and holder thereof. (3) He has not any knowledge or information sufficient to form a belief as to any allegation contained in the subdivision of plaintiff’s complaint marked “3” and “4,” except that he is informed and verily believes that $75 has been paid on account of said note. And defendant, further answering plaintiff's complaint, alleges: (4) That on or about March 22, 1893, one Ellis Frank, a member of the copartnership of E. Frank & Bro., called upon defendant, and desired him to make the promissory note alleged in the complaint, without giving defendant any consideration therefor, and purely for the accommodation of said E. Frank & Bro. (5) That defendant complied with said request. (6) That, as defendant is informed and verily believes, the plaintiff had actual notice of the facts alleged in allegations 4 and 5 of this answer, before the alleged indorsement of said note by E. Frank & Bro., and delivery thereof to plaintiff. (7) That defendant is informed and verily believes that said E. Frank & Bro. delivered said note to plaintiff as collateral security for the payment of a loan made by plaintiff to said E. Frank & Bro. of the sum of $2,000, and payable on or about May 22, 1893. *280(8) That upon said loan, and at or before so pledging said note,, said plaintiff and E. Frank & Bro. had made the corrupt and usurious agreement that said plaintiff should reserve, and E. Frank & Bro. should pay, interest on such loan at the rate of 15 per cent, per annum, and in pursuance thereof said plaintiff retained of said sum of §2,000 the sum of §50, and paid over to said E. Frank & Bro. the sum of .only §1,950. Wherefore defendant prays (1) that the complaint be dismissed, with costs; (2) that the plaintiff deliver, up the note alleged in the complaint to be canceled.

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

W. Bernard, for appellant.

E. Bien, for respondent.