It has been repeatedly held in this court, that an answer simply denying that the plaintiff is the lawful owner and holder of a note on which the action is brought, is bad. Such an answer at the present day is considered frivolous. The present answer, however, goes further, and avers that the plaintiff, prior to the commencement of this action, for a good consideration, sold and delivered the notes to a third person, who is named, and that he was, at the commencement of the action, the lawful owner and holder of the notes. We cannot say this answer to be frivolous. If the defendants should prove this on the trial, it would prevent a recovery by the plaintiff, unless he showed that the title to the note had again been vested in him. There is ground for supposing the defence a very doubtful one, but if not true, the remedy is by a motion to strike out the answer as false, on the plaintiff’s affidavit. To warrant the court in striking it out as frivolous, it must be clearly bad on inspection merely, and not require an argument to convince the court thereof. If it is doubtful whether the answer is sufficient or not, it is not frivolous.
Leonard, J., and Clerks, P. J., concurred.
Order at chambers reversed, without costs, and without prejudice to a motion to strike out the answer as false.
Present, Clerke, P. J., Ingraham and Leonard, JJ.