Kiefer v. Thomass — 6 Abb. Pr. 42

Majority

p. 42

KIEFER against THOMASS.

New York Common Pleas ; Special Term,

March, 1869.

Headnote

Sham Answer.—Striking Out.

To strike out an answer as sham-it is not enough that the court should perceive but little prospect of 'a result favorable to defendant, or even that plaintiff's ultimate success appears sure; but the answer must be false in the sense of being a mere pretense, set up in bad faith, and without color of fact.

Motion to strike out an answer as sham.

This was an action brought by William Kiefer against John J. Thomass, Daniel Winkens, and Kathi his wife, William Steinway, executor of the last will and testament of Charles Steinway, deceased, and John Twéddle.

The complaint was for the foreclosure of a mortgage made by Winkens and his wife, to secure a bond given by Thomass and Winkens.

Winkens and Ms wife interposed an' answer in which they alleged the following matter as a separate defense.

That on or about the said first day of January, 1867,

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William Kiefer, the above named plaintiff, and John J. Thomass, one of the above named defendants, were co-partners in.trade, under the firm name of Kiefer & Co., and. that the said firm of Kiefer & Co. then was wholly insolvent, which was well known to the plaintiff.

That the plaintiff, on or about the said first day of January, 1867, fraudulently and falsely represented that his, the said plaintiff’s, interest in the said firm, over and above all the debts and liabilities of the said firm, amounted to the sum of one hundred thousand dollars and upwards, and proposed to retire from the said firm and to transfer his pretended interest therein to the said defendant, John J. Thomass, in case the defendant, Daniel Winkens, would secure to him, the said plaintiff, the payment of the sum of fifty thousand dollars, part and parcel of said pretended interest, in the manner hereinafter stated ; that the said plaintiff and the said defendant, Thomass, conspiring together with the intent to defraud these defendants, concealed from the defendant, Daniel Winkens, the fact that the firm of William Kiefer & Co. was then insolvent, which fact they, the said plaintiff, and the said defendant, John J. Thomass, then well knew, and did falsely represent to the said Daniel Winkins that the said firm was then solvent, and that the interest of the plaintiff in the said firm then amounted to the sum of one hundred thousand dollars and upwards, over and above ail debts and liabilities of the said firm, all of which the plaintiff then knew to be false and untrue.

And these defendants further say that thereupon relying upon the truth of the said statements, and in order to secure a part of the pretended interest of said plaintiff in the said firm, which said pretended interest the said plaintiff transferred to the said defendant John J. Thomass, the defendant Daniel Winkens, together with the defendant John J. Thomass, executed to the plaintiff William Kiefer the bond in the said complaint set forth ; and for the further security thereof the defendant Daniel Winkens at the time of the execution of the said bond, and bearing even date therewith, executed to the said plaintiff a mortgage

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on the premises and real estate as in the said complaint alleged, and also on seven certain lots which said Daniel Winkens and Kathi his wife had previously conveyed and which were included in the said mortgage without the consent of the said Daniel Winkens, and also on the machinery in the said premises contained: that these defendants are informed and believe that the defendant Thomass did deliver the said mortgage on or about the 16th day of February, 1867, in escrow to one E. J. Baldwin, and upon the express condition that it should not be delivered to the plaintiff without the consent of the said Thomass, and that on the eighteenth day of February, 1867, and without the consent of the said Thomass, and without the knowledge or consent of the said Daniel Winkens, the said E. J. Baldwin caused the said mortgage to be recorded in the office of the register of the city and county of New York, and these defendants further say, that they did not, nor did either of them at any time deliver the said bond and mortgage to the said plaintiff.

The defendants then alleged that for the mortgage recorded, &c., the plaintiff parted with no value, and the defendants received no consideration ; that it was procured by fraud and was void, and demanded that it be delivered up and canceled.

The motion to strike out this answer was. based on affidavits which are referred to in the opinion.

O. Bainbridge Smith, for the plaintiff.

James Esehwege, and Henry Hieoll, for defendants.

Considering the affidavit of Ehrhardt, to the effect that a false balance sheet was made out under Kiefer’s orders, that the firm was then really insolvent, and that a large amount of worthless debts was designedly given the place of real and valuable assets, and considering also the statement of Thomass, I do not think that the answer should be stricken out as sham. The testimony of Winkens does not necessarily negative his aver

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ment. There may have been no false statements made by means of actual words spoken, and yet a fraudulent concealment, and even a direct misrepresentation are, upon the facts contained in Ehrhardt’s affidavit, properly pleadable, and made issues in the cause.

To strike out an answer as sham, it is not enough that the court should perceive but little prospect of a result favorable to the defendant, nor even that the plaintiff’s ultimate success should, upon the affidavits adduced, appear to be indubitable; the answer must be false, in the sense of being a mere pretense, set up in bad faith, and without color of fact, and I am not prepared to hold that the present answer is within this definition.

The series of facts and circumstances detailed by the plaintiff, and established by reference to documents, as well as his argument with respect to the effect of the arbitration, and the retention of the partnership property, go a long way in throwing doubts upon Ehrhardt’s statement, and may, even were the truth of that statement conceded, entitle the plaintiff to judgment. But such circumstances should properly be reserved for the trial, of which a defendant can only be deprived in the extreme case to which reference has been made, and which this would certainly have been held to be, but for the charge of manipulating the bad debts, and making of the balance sheet; a misrepresentation with reference to which as a false and fraudulent basis, it is claimed that every subsequent act must be viewed.

The motion must be denied.