Board of Education v. Powell

285 A.D. 1197 | N.Y. App. Div. | 1955

Appeal from an order of the Supreme Court entered in Albany County on August 17, 1954, striking out the answer and granting summary judgment to the plaintiff, and from the judgment entered thereon. Defendants’ school district has been dissolved and annexed to plaintiff’s school district pursuant to the appropriate provisions of the Education Law. Plaintiff brought this action to recover $1,100.81 remaining in the hands of the defendants after the dissolution and annexation and after all debts of the district had been paid. The answer purports to raise three defenses: (1) that the plaintiff has no legal capacity to sue; (2) that a judgment recovered against the defendants for the same fund by still a third district, Union Free School District No. 1 of the Towns of Bethlehem, Coeymans and New Scotland, is binding upon the plaintiff; and (3) that the money has been used for school purposes, because it has now been paid to the last-mentioned district pursuant to the judgment obtained by it. The first question has been decided adversely to the defendants and affirmed by this court. (Board of Edue., Union Free School Dist. No. 1, Town of Coeymans, Albany Co., v. Powell, 280 App. Div. 1012.) The second contention is legally insufficient because it appears without dispute that the plaintiff was not a party to the action in which said judgment was obtained; had no notice of the action and had no knowledge of the uncontested judgment until after its entry. It is quite apparent that the judgment asserted as a defense was a “ friendly ” uncontested judgment, entered for the purpose of a defense herein, but without that element, it is not binding upon plaintiff. It has been finally and conclusively determined that the defendants’ school district was properly dissolved and annexed to plaintiff’s district and never became a part of Union Free School District No. 1 of the Towns of Bethlehem, Coeymans and New Scotland. (Matter of Board of Edue. of Bethlehem Union Free School Dist. v. Wilson, 303 N. V. 107.) As to the third contention, it appears conclusively from the previous decisions and the moving papers that the defendants had the sum of $1,100.81 in their possession upon the dissolution of their district after all district debts were paid; that thereupon plaintiff became exclusively entitled thereto and that any transfer of said fund by defendants thereafter is no defense to plaintiff’s claim. The court at Special Term correctly determined that the defenses contained in the answer are merely sham and that the plaintiff was entitled to judgment. Order and judgment unanimously affirmed, with costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.