121 Misc. 264 | N.Y. Sup. Ct. | 1923
The plaintiff, Frank B. Hall & Co., Inc., has moved under rules 103 and 104 of the Rules of Civil Practice “ for an order striking out the allegations contained in the answer as sham and frivolous and for judgment.” It appears that in January, 1922, the plaintiff had commenced an action against a foreign corporation and secured a warrant of attachment in that action. The sheriff attempted a levy under that warrant upon property claimed to belong to the foreign corporation in the hands of the present defendant. The defendant made a return that it has no property of the foreign corporation in its hands. Thereafter the plaintiff obtained an order for the examination of the present defendant and has brought this action against it alleging in the complaint not merely the ultimate facts upon which liability on the part of this defendant might be based but also evidence obtained upon the defendant’s examination through which the plaintiff apparently expects to establish the ultimate facts. The plaintiff now claims that the testimony given by the defendant itself upon its examination establishes the falsity of the denials of some óf these allegations and that, therefore, the denials should be stricken out as sham. The defendant seeks to sustain these denials by an affidavit of the same officer who gave the original testimony. This affidavit in some respects adds to
•The plaintiff, by pleading evidentiary facts based upon its own conclusions of testimony given, should not be allowed to compel the defendant to admit those facts as pleaded without qualification but the defendant on the contrary may deny those facts if such denial is made in good faith and based on its own conclusions from the same testimony and such conclusions are not palpably wrong.
Motion is, therefore, denied with ten dollars costs.
Ordered accordingly.