legation. Seeley v. Engell, 17 Barb. 530; S. C. Rev'd, 13 N. Y. (3 Kern.) 542. In an action on a promissory note, where the answer admitted the making and possession of the plaintiff as endorsee, a denial that he was the lawful owner and holder of the note; that defendant was indebted to him thereon, was held to raise no issue of fact, but was a denial of a conclusion of law, and was, therefore, irrelevant and frivolous. Catlin v. Gunter, 11 N. Y. Leg. Obs. 201; S. C. 1 Duer, 265; S. C. Rev'd, on other grounds, 11 N. Y. (1 Kern.), 368. See Witherspoon v. Van Dolar, 15 How. 266. A verified answer which alleged that, as to the averment in the complaint, that the plaintiff is the lawful holder and owner of said note, and that the defendant is indebted to him thereon, in the sum of $, and interest, the defendant has no knowledge or information sufficient to form a belief, and can, therefore, neither deny nor admit the same, was struck out as sham and frivolous. Fleury v. Roger, 9 How. 215; Flammer v. Kline, id. 216; Fleury v. Brown, id. 217. Where the answer to the complaint on a promissory note denied knowledge or information, etc., of demand of payment, of notice of non-payment, the plaintiff, on a material affidavit of demand, a refusal and protest, moved to strike it out as sham, the defendant made affidavit that his answer was made in good faith, and that it was true to the best of his knowledge and belief, but did not state facts warranting his belief, motion denied. Bailey v. Lane, 13 Abb. 354; modifying S. C. 21 How. 475.

Where the complaint on a promissory note averred that the plaintiff was the owner and holder thereof, and the answer denied that

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averment, the plaintiff moved to strike out the answer as sham, when it appeared from the affidavits that he held the notes as an assignee for the benefit of creditors, the motion was granted. Butterfield v. Macomber, 22 How. 150.

i. Denial of knowledge, etc.-So, in an action for false imprisonment, a verified answer, denying knowledge or information as to the allegation of the complaint, that defendants caused to be issued the writ on which plaintiff was arrested, was struck out as sham. Lawrence v. Derby, 15 Abb. 346 (n.); S. C. 24 How. 133. Where the defendant denied knowledge of the recovery of a judgment in an action where he appeared, the answer was struck out as sham. Beebe v. Marvin, 17 Abb. 194.

j. Denial on information and belief. Where an answer, duly verified, states a sufficient defense, on defendant's information and belief, it should not be struck out as sham. Miller v. Hughes, 21 How. 442; S. C. 13 Abb. 93 (n.)

k. Amended answer.-Where defendant moved for leave to put in an amended answer, and, on the motion, served a copy of the proposed answer, to which no objection was made, held, that the plaintiff was precluded from moving to strike it out as false, after leave had been given to defendant to serve such answer. Mussina v. Stillman, 13 Abb. 93.

7. A verified answer, denying a material allegation of the complaint, may be stricken out as sham. People v. McCumber, 18 N. Y. (4 Smith), 315. See S. C. 27 Barb. 632; 15 How. 186.

II. IRRELEVANT PLEADING.

a. What is.-A pleading is irrelevant which has no substantial relation to the controversy between the parties to the suit. A denial of a material allegation of the complaint cannot be considered irrelevant. Seward v. Miller, 6 How. 312. An answer may be frivolous and not irrelevant. Fasnacht v. Stehn, 5 Abb. N. S. 338; S. C. 53 Barb. 650. Or Sham. Gregory v. Wright, 11 Abb. 417. Irrelevancy comprehends prolixity, or need-| less details of material matter, or something out of which no cause of action or defense could arise. Lee Bank v. Kitching, 11 Abb. 435; S. C. 7 Bosw. 664; Struver v. Ocean Insurance Co. 2 Hilt. 476; S. C. 9 Abb. 23.

The irrelevancy of an answer must be palpably clear, otherwise the question of its sufficiency should be presented by demurrer. Littlejohn v. Greeley, 22 How. 345; S. C. 13 Abb. 311. See Struver v. Ocean Insurance Co. 9 Abb. 23; S. C. 2 Hilt. 475. Also, Lee Bank v. Kitching, 11 Abb. 435; S. C. 7 Bosw. 664. If the averments of an answer do not tend to constitute a defense, they are irrelevant. Dovan v. Dinsmore, 33 Barb. 86. In an action for libel, etc., insufficient matter, pleaded in mitigation of damages, may be ir

relevant. Herr v. Bamberg, 10 How. 128. In an action for part of the price of goods sold and delivered, a defense that the plaintiff wrongfully converted to his own use prop erty of the defendant, is irrelevant. Kurtz v. McGuire, 5 Duer, 660. An answer which merely denies that the plaintiff is entitled to the relief demanded, will be stricken out as irrelevant. Drake v. Cockroft, 1 Abb. 203; S. C. 4 E. D. Smith, 34; 10 How. 377.

b. A counterclaim is not a defense, and therefore cannot be struck out as sham and irrelevant. Collins v. Suau, 7 Rob. 94.

c. Action on note.-In an action on a promissory note, against the first indorser thereof, an answer alleging that plaintiff is not the real party in interest or the owner of the note; that it belonged to R. a second indorser, who, at the time he owned it was indebted to the maker, and that the maker had notified the defendant not to pay the note, was held irrelevant, except the allegation that the plaintiff was not the real party in interest or the owner of the note. Arrangoiz v. Frazer, 2 Hilt. 244. See Tamisier v. Cassard, 17 Abb, 187.

III. MOTION TO STRIKE OUT.

d. Counter-affidavits.-A motion to strike out as sham an answer (setting up new matter, verified or unverified), if not opposed or met by affidavits showing that it was put should be allowed. But if the defendant substantially reaffirms the truth of the answer and makes an affidavit of merits, it should stand. Farmers' & Mechanics' Bank of Rochester v. Smith, 15 How. 329; People v. McCumber, 18 N. Y. (4 Smith), 315. See S. C. 27 Barb. 632; 15 How. 186; Miller v. Hughes, 13 Abb. 93 (n.); S. C. 21 How. 442.

a. In general.-Separate allegations or part of a defense cannot be stricken out as sham or false. Collins v. Coggill, 7 Rob. 81; Slack v. Cotton, 2 E. D. Smith, 398; Bell v. Ogden, 13 Abb. 93 (n.); Littlejohn v. Gree-in in good faith, and by an affidavit of merits, ley, id. 311. Nor can a whole defense be stricken out as irrelevant or redundant. Collins v. Coggill, 7 Rob. 81. A motion to stike out a joint answer as sham, may be allowed as to some of the defendants and not as to the others. Burrall v. Bowen, 21 How. 378. It seems the right to move to strike out for irrelevancy and to demur are not optional with the plaintiff; where the irrelevancy of an answer is not clear, the question of its sufficiency should be presented by demurrer. Littlejohn v. Greeley, 13 Abb. 311; S. C. 22 How. 345. A defense may be struck out as Isham on the sole ground of its falsity. McCarty v. O'Donnell, 7 Rob. 431; People v. McCumber, 15 How. 186; 18 N. Y. (4 Smith), 325; Webb v. Van Zandt, 16 Abb. 190; Manufacturers' Bank of Rochester v. Hitchcock, 14 How. 406. But this power must be cautiously exercised, so as to avoid entrenching upon defendant's right to a trial of a disputed fact. id. For the only safe rule in such cases, see McCarty v. O'Donnell, 7 Rob. 431.

It seems, that on a motion to strike out an answer as false, it must be shown by an affidavit, other than the verification of the complaint, to be false. White v. Bennett, 7 How. 59; Kellogg v. Baker, 15 Abb. 287. It seems, that where an absolute averment in the complaint is supported by an oath of positive knowledge, and that in the answer being merely on information. sufficient to form a be lief, the defendant is bound, on motion to strike out the latter as sham, to support it by the oath of a party having positive knowledge. People v. McCumber, 15 How. 186; S. C. 18 N. Y. (4 Smith), 316.

b. Motion barred.-A motion noticed to strike out an answer as sham, is not barred by a subsequent service of a notice of trial. Beebe v. Marvin, 17 Abb. 194.

A denial of a motion to strike out as frivolous, is not a bar to a motion to strike out as sham. Kreitz v. Frost, 5 Abb. N. S. 277.

c. Evidence of the truth of the answer. Slight evidence indicating good faith, is sufficient to prevent a verified answer from being struck out as sham. Munn v. Barnum, 1 Abb. 281; S. C. 12 How. 563. It seems, that the truth or falsity of a pleading will not be tried on a motion where the affidavits on both sides are positive. Catlin v. McGroarty, 1 Code R. N. Š. 291; Miln v. Vose, 4 Sandf. 660. On a motion to strike out a pleading as sham, where the affidavit of the moving party avers facts which avoid the defense set up in the pleading, the defendant need not disprove them, when they are such as are not presumed to be within his knowledge Wirgman v. Hicks, 6 Abb. 17.

Where the affidavits in support of such motion are on information and belief, they should also give the source of such information. Corbett v. Eno, 13 Abb. 65.

e. Several motions in one.-It seems, that in a proper case, a motion to strike out sham and irrelevant defenses, for judgment ting irrelevant and redundant matter, and for on overruling frivolous defenses, for expurgaa compulsory amendment of indefinite allegations, may all be combined in one. People v. McCumber, 15 How. 186; S. C. 27 Barb. 632; 18 N. Y. (4 Smith), 315.

f. Notice of motion.-A motion, noticed to strike out several defenses as sham and frivolous, should properly specify which defenses are moved as sham, and which as frivolous. Bailey v. Lane, 13 Abb. 354; modifying S. C. 21 How. 475. But need not necessarily. Ib.

g. Motion pending. During the pendency of a motion to strike out as sham, it is irregular to move to strike out the same defense on the ground that defendant has not complied with an order requiring it to be made definite. Kellogg v. Baker, 15 Abb. 286.

h. Answer amended.-Where defendant served a copy of the proposed amended answer, with a notice of motion for leave to amend, and the motion was granted without objection to such answer, held, that plaintiff was thereby precluded from afterwards moving to strike it out as false. Mussina v. Stillman, 13 Abb. 93.

i. Time extended to reply. It is no objection to a motion to strike out an answer as sham, that the plaintiff has obtained an order for time to reply. Miln v. Vose, 4 Sandf. 660. Or has served notice of trial. Beebe v. Marvin, 17 Abb. 194.

j. Time allowed to demur.-Where a motion to strike out an answer as sham or irrelevant, is denied, and the answer is insufficient on other ground, the plaintiff will be allowed time to demur. Seward v. Miller, 6 How. 312. Unless it be so frivolous that the plaintiff ought not be put to his demurrer. Miln v. Vose, 4 Sandf. 660.

k. Judgment, how entered.-Where an answer has been stricken out as sham and irrelevant, the proper method of obtaining judgment is to proceed as though no answer had been put in. DeForest v. Baker, 1 Abb.

§ 153. [131.] (Am'd 1849, 1851, 1852, 1855, 1857, 1860.) Reply; when to be put in, and what to contain.

When the answer contains new matter, constituting a counterclaim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege, in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to such new matter in the answer, and the plaintiff may, in all cases, demur to an answer containing new matter, where upon its face it does not constitute a counterclaim or defense; and the plaintiff may demur to one or more of such defenses or counterclaims, and reply to the residue of the counterclaims.

And in other cases, when an answer contains new matter, constituting a defense by way of avoidance, the court may, in its discretion, on the defendant's motion, require a reply to such new matter; and in that case, the reply shall be subject to the same rules as a reply to a counterclaim.

I. THE

a. New matter.-It seems, that an answer which avers that the charges contained in the alleged libellous publications are true, does not contain new matter within the meaning of this section. Maretzek v. Cauldwell, 19 Abb. 35; S.C.2 Rob. 715. If new matter set up in a defense is sham or irrelevant, the plaintiff should move to strike it out. If it does not, on its face, constitute a defense, he should demur. Smith v. Countryman, 30 N. Y. (3 Tiff.) 655. See Meyer v. Fiegel, 7 Rob. 128; S. C. 34 How. 438.

b. Counterclaim-The rules applicable to the taking of objections to a complaint, are impliedly applicable to an answer setting up a counterclaim. Ayres v. O'Farrell, 10 Bosw. 143. An answer containing a counterclaim will be taken as true, unless replied to. Clinton v. Eddy, 1 Lans. 62; S. C. below, 37 How. 23; 54 Barb. 54.

c. Reply, not required.-No reply will be allowed unless the answer contains a counterclaim. Devlin v. Bevins, 22 How. 290.

REPLY.

In an action to recover possession of personal property, an answer alleging that defendant has a lien on the same and claims damages for the taking of it from him in the action, does not set up a counterclaim requiring a reply. DeLeyer v. Michaels, 5. Abb. 203; McKensie v. Farrell, 4 Bosw. 193. So, in an action for an accounting, against a general assignee, for the benefit of creditors, an answer alleging that defendant has incurred expenses in relation to the assigned property, does not require a reply. Duffy v. Duncan, 35 N. Y. (8 Tiff.) 187; Aff'g S. C. 32 Barb. 587.

d. General denial, waiver. A reply, that plaintiff denies all those allegations contained within certain specified folios, is good as a general denial. Gassett v. Crocker, 9 Abb. 39. Where plaintiff replies to a counterclaim, he thereby waives all objections to its form, or amendable defects. Ayres v. O'Farrell, 10 Bosw. 143. See Smith v. Countryman, 30 N. Y. (3 Tiff.), 655.

e. Verification.-Where the plaintiff has

g. Demurrer for insufficiency.-On | for flowing lands, an answer, which sets up demurrer to an answer, on the ground of insufficiency, it is enough to specify generally that the answer is insufficient. Arthur v. Brooks, 14 Barb. 533; Hyde v. Conrad, 5 How. 112; S. C. 3 Code R. 162.

§ 154. (Am'd 1863.) When defendant may move for judgment upon an

If the answer contains a statement of new matter constituting a counterclaim, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued.

If a reply of the plaintiff to any defense set up by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof.