The only question in the case is whether the court has power to strike out the answer, and if it has the power, I am quite satisfied it should be exercised in this case. That the issue made was a material one, was long since settled (Snyder agt. White, 6 How., Pr., 321; Leach agt. Boynton, 3 Abb. Pr., 1; Sherman agt. Bushnell, 7 How., 171), and it cannot be stricken out as sham (Thompson agt. Erie R. R. Co., 45 N. Y., 468).
The plaintiffs’ counsel cites and relies much upon Kay agt. Whittaker (44 N. Y., 566), decided by the commission of appeals, in September, 1871, and after the court of appeals had, in the same year, in the cases of Wayland agt. Tysen and Thompson agt. Erie Railway Company (45 N. Y., 281, 468), held the other way.
The case of Kay agt. Whittaker goes much to sustain the People agt. McCumber (18 N. Y., 315), which judge Grover says in Wayland agt. Tysen, did not involve the point, and that it cannot be regarded as an authority for the construction contended for, and the practice has since conformed -to the latter case. Schutze agt. Rodewald (1 Abb. N. C., 365), Fellows agt. Muller (38 N. Y. S. C. R., 137), and Farmers and Mechanics’ Bank agt. Leland (50 N. Y., 673), appear to cover this case completely.
The motion must be denied, but' as it was sustained by Kay agt. Whittaker, it is without costs.