The defendant H. Bushnell, by his answer, substantially admits that he made the note sued on, but denies that he has any knowledge or information sufficient to form a belief that the payee indorsed and delivered it to the plaintiffs. This is a material part of the issue. The plaintiffs obtained an order at special term striking out the answer as sham, because affidavits were produced which made it very probable that the defendant did know that the payee had so indorsed it. On appeal the plaintiffs contend that a defendant must answer as to his knowledge of matters which it is to be presumed are within his knowledge. This is to overturn the privilege given him by the code, which is in the alternative, to deny the plaintiffs’ allegation, or to deny “ any knowledge or information thereof sufficient to form a belief.” (Code, § 149.) If a different rule has been adopted in courts other than the supreme court, it seems too clearly at variance with the law to be followed. Next it is said that the answer is a sham one, because it is to be inferred that it is false, and known to the defendant to be so. That is part, but only a part of the definition of a sham answer. It omits the essential part of the definition, viz. that the answer set up new matter. Accordingly, under the old system, the general issue, which was a mere negative, was never treated as.sham, but only those pleas which had no foundation in the facts of the case, but only in the ingenuity and imagination of the attorney. (Broome County Bank v. Lewis, 18 Wend. 566.) It was this ingenuity and invention which was the evil that was to be corrected, and which could not be alledged against a mere denial, whether of one or of all the allegations in the complaint. Ingenuity and invention can be predicated only of new matter introduced. The word sham may apply to any thing active, not to mere denial. A sham fight, in which all *396the action was on one side, would not be more extraordinary than a sham answer, which merely puts in issue the allegations of the plaintiff, without setting up new' matter. The term “sham plea” was well known when the code was adopted. Instances of these pleas may be found in 1 Chitty’s Pl. 575; and it has obtained a precise legal meaning, applicable only to pleas of new matter, and in that known and established sense it was used in the code. This answer was also sworn to. For that reason also, as was held at the general term of this court in Mier v. Cartledge, (8 Barb. 75,) it ought not to be regarded as sham.
[New-York General Term, October 4, 1852.Edwards, Mitchell and Roosevelt, Justices.]
The order appealed from is reversed, without costs.