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Zivi v. Einstein

20 N.Y.S. 893 Court N.Y. City Ct. Decision date 1892-11-25 English

Decision Majority — *894 Ehrlich, C. J. · Dissent — Newburger, J.,

Contents
p. 893
Zivi v. Einstein et al.
(City Court of New York, General Term.
November 25, 1892.)

Headnote

Sham Answer—Matters of Record—Denial of Knowledge or Information.
Where the material allegations of the complaint consist of facts of record in the court where the action is pending, an answer merely denying knowledge or information of such facts is properly stricken out as sham, since the records are open to.inspection, and ignorance thereof is intentional. Ñewburger, J., dissenting.
Appeal from special term.
Action by Bernard Zivi against Elias Einstein and Louis Nelke to recover the amount due plaintiff on a judgment against a full-liability corporation in which defendants are stockholders. From an order sustaining a motion to strike out the answer as sham, defendants appeal. Affirmed.
Argued before Ehrlich, C. J., and Fitzsimons and Newburger, JJ.
Townsend, Dyett & Einstein, for appellants. James Murphy, for respondent.

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 alleges the recovery of a judgment against the company in this court, together with the issuing and return of an execution thereon unsatisfied. The defendants denied any knowledge or information as to the facts 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. Electric Co., (Super. N. Y.) 19 N. Y. Supp. 906 . And the order made was right, and must be affirmed, with costs.

Fitzsimons, J., concurs.

(dissenting.) 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. Electric Co., (Super, N. Y.) 19 N. Y. Supp. 906 , referred to by my associates, was a case in which the answer was stricken out as frivolous, and not as being sham. The order appealed from should therefore be reversed, with costs.