The answer is not frivolous. It denies a material allegation of the complaint. If the plaintiff does not prove satisfactorily, on the trial, the assignment to him of the judgment, he must fail in his action.
The denial in the answer is made upon belief and not upon information and belief; and the plaintiff insisted that such an answer is not allowable. Section 149 of the code allows the defendant to make, “ to each allegation of the complaint controverted by the defendant, a general or specific denial thereof, or a denial thereof according to his information and belief, or of any knowledge thereof sufficient to form a belief.” It seems to me absurd to say that a defendant may deny an allegation of the complaint, when he has not knowledge thereof sufficient to form a belief, and yet shall not be permitted to deny such allegation when he believes it to be untrue. Such a construction could not have been intended and does not, in my opinion, necessarily belong to the language employed. It is certain that the intent would have been more satisfactorily expressed, if in the second clause of the section, the denial was required to be according to his information or belief. But I think the first clause is ample to sustain this answer. It permits a general or specific denial and does not, in terms, confine such denial to facts within the knowledge' of the defendant.
This construction of the section last mentioned is sustained by the provision of the 157th section, which prescribes, as a verification of the pleading, that the affidavit of a party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and, as to those matters, he believes it to be true.” This clearly implies that matters may be stated in the pleading on belief only.
If I am right in this view, a material allegation is denied in the form and manner prescribed by statute; and the answer cannot therefore be called a sham answer, within the meaning of the 152d section of the code.
The next question is, whether the answer can be struck out as false. It would certainly be a dangerous practice to try issues of fact on affidavits. Under the late practice of this court, the plea of the general issue was never struck out as false; and where new matter was set up, an affidavit of the truth of the plea was a perfect answer to the motion. (Tucker v. Ladd, 4 Cowen’s Rep. 634; Oakley v. Devoe, 12 Wend. 196.) The practice ought not to be changed in this respect, under the code. The general issue being abolished, the defendant, instead of denying all, has denied one of the material allegations of the complaint; and *158he has a right to require that the issue thus joined, shall be tried in the usual manner.
The 152d section of the code provides that sham answers and defences may be stricken out on motion; but the counsel for the plaintiff is wrong in supposing that sham is there used as synonymous with false. If it were so, the truth of every answer might be tested on a special motion. Parties would thus be enabled in making affidavits to become witnesses for themselves, and the right of trial by jury would he disregarded. It is only where the answer takes issue upon some immaterial averment of the complaint, or sets up new and irrelevant matter, that it can properly he called a “ sham” defence. I find nothing in comparing section 152 with section 247, which denotes that the Legislature intended to say that a sham pleading meant anything different from a frivobus pleading. I think both words describe the same kind of defence, except that a frivobus answer may not necessarily imply that its object was evasion, or delay.
The affidavit annexed to the answer appears to he defective, in using the words “information and belief” instead of saying “information or belief.” But the motion is not made on that ground, nor was any such "objection stated on the argument.
The motion must therefore be deified, hut without costs; and the defendant is at liberty to amend the affidavit annexed to his answer.