When this case was reached for trial at the Chautauqua Trial Term, the plaintiff moved to strike out the defendant’s answer as frivolous. This motion was improper in form, for such a motion must be noticed within twenty days from the service of the pleading to which the motion is addressed. (Rules Civ. Prac., rule 105.) In this case no notice was given, and more than twenty days had elapsed. It was, however, at that time open to the plaintiff to move for judgment on the pleadings, and as the relief sought on either motion would be practically the same, we treat the motion made as one for judgment on the pleadings.
The complaint alleged a lease by the plaintiff to the defendant of a certain farm for a period of three years, and that as a part of the consideration the defendant agreed to cut and remove, and burn and clear of brush and trees a portion of the land, and further alleged an occupation of the premises by the defendant throughout the term of the lease and a breach of the agreement to clear the premises and damage by reason of these facts in the sum of $190. The answer was a general denial upon information and belief and affirmative defenses to the effect that the plaintiff was a New York Indian and the leased land was on an Indian reservation. It was not alleged that the lease was to enable the defendant to *662settle or reside upon the reservation, nor that the land was not wild land allotted to the plaintiff. The affirmative defenses were, therefore, insufficient under the provisions of sections 8 and 56 of the Indian Law.
The capacity of a New York Indian to maintain an action in our courts is established. (Indian Law, § 5; Hatch v. Luckman, 64 Misc. Rep. 508; affd., 155 App. Div. 765; Onondaga Nation v. Thacher, 29 Misc. Rep. 428; affd., 53 App. Div. 561; affd., 169 N. Y. 584.)
The denials upon information and belief of the allegations of the complaint, except as to the damages, related to matters necessarily within the knowledge of the defendant, and such a traverse of such allegations raised no issue (Dahlstrom v. Gemunder, 198 N. Y. 449; Bloch v. Bloch, 131 App. Div. 859; Allen v. National Surety Co., 144 id. 509); nor did the denial of the allegation of damages require a trial. (Thompson v. Lumley, 7 Daly, 77; Howell v. Bennett, 74 Hun, 558.)
In granting the motion for judgment the court could at the same time have required the jury to assess the damages. (Civ. Prac. Act, § 460; Lewis v. City Realty Co., 158 App. Div. 733.) The court did not do so, however, but gave the defendant an opportunity to amend, which was within the court’s power, and in case the defendant failed to take advantage of the privilege, the case thereafter would be similar to one where there had been a failure to plead, and judgment should then be taken as provided in the Civil Practice Act, sections 489, 490 and 491.
The order appealed from should be modified by striking out the paragraph ordering the answer stricken out as frivolous, and by amending the paragraph ordering judgment to read: “ Ordered, that the plaintiff have judgment against the defendant for such sum as the court may assess upon application made as provided in Civil Practice Act, sections 489, 490 and 491, unless the defendant within ten days after service of a copy of this order serve an amended answer and pay ten dollars, costs of motion.” and as so modified should be affirmed.
All concur.
- Order modified in accordance with opinion and as modified affirmed, without costs of this appeal to either party.