Ford v. Reilley

Hagarty, J.

This is an action upon a promissory note for $2,000. The defendant, who is not a lawyer and appears in person, in his answer denies having any knowledge or information sufficient to form a belief as to the allegations of the complaint. It is the general rule that such an answer by an individual in this kind of a case is insufficient, and the answer would be stricken out and judgment entered in favor of the plaintiff were it not for the facts disclosed by the affidavits submitted both by the plaintiff and the defendant. From the affidavit submitted by the plaintiff, it appears that the person to whom the defendant is indebted is one Bonita Crowe, to whom defendant had previously given his promissory note and who still holds it. Bonita Crowe’s claim was never assigned to the plaintiff, and there was no privity of contract whatsoever growing out of the relations between the plaintiff and the defendant. From the affidavit submitted by the defendant, it appears that, in addition to want of consideration, defendant has a further possible defense to the effect that the plaintiff, wrongfully and contrary to the express direction of the defendant, inserted his own name in the noté as payee instead of the name of Bonita Crowe. Both of the defenses could be set up in an amended answer. *374Although the answer is defective in not properly pleading defenses, technical defects in the pleading of an adversary are not available to a plaintiff upon an application under this rule [Rule 113] for the entry of summary judgment.” (Curry v. Mackenzie, 239 N. Y. 267, 272.) The answer may be amended, possibly at the trial, but certainly at Special Term, before trial. The motion for summary judgment is denied.