1 Misc. 212 | City of New York Municipal Court | 1892
Dissenting Opinion
This is an appeal from an order striking out defendants’ answer as sham.
The denials in the answer herein are substantially general denials of material allegations of the complaint, and though false, cannot be stricken out as sham.
The case of McLean v. Julien Electric Company, 28 Abb. New Cas. 249, referred to by my associates, was a case in
The order appealed from should, therefore, be reversed, with costs.
Ehrlich, Ch. J. The judgment entered herein must be affirmed with costs, on opinion filed this day on affirming the order herein.
Fitzsimons, J., concurs.
Lead Opinion
The action is against the defendants as stockholders in a domestic corporation formed under chapter 611 of the Laws of 1875, as a full liability company.
The complaint alleged the recovery of a judgment against the company in this court, together with the issuing and return of an execution thereon, unsatisfied.
The defendant denied any knowledge or information as to the fact of the judgment and execution, and rested on this form of denial for a defense.
The plaintiff proved the facts disputed by affidavit and by the records themselves, and moved to strike out the answer as sham. The motion was granted, and the defendants appealed from the order.
The matters in dispute consisted of court records, open to public inspection, and the ignorance thereof by the defendants was intentional. Such pleas are not encouraged. McLean v. Julien E. Co., 28 Abbott’s New Cas. 249; 19 N. Y. Supp. 906. And the order made was right, and must be affirmed, with costs.
Fitzsimohs, J., concurs.