Wilson v. Eastman & Mandeville Co. — 30 N.Y. St. Rep. 409

Majority

p. 409

Frederick B. Wilson, Resp’t, v. The Eastman & Mandeville Co., App’lt.

(Supreme Court, General Term, First Department,

Filed March 14, 1890.)

Headnote

Pleading—Sham answer.

An answer denying knowledge or information sufficient to form a belief as to any of the material allegations of the complaint cannot be stricken out as sham. Such answer amounts to a general denial, and in such case the right to strike out as sham does not exist.

Appeal from order striking out the answer interposed to the complaint as sham.

W. B. Bllison, for app’lt; William Armstrong, for resp’t.

This action was brought for the purpose of procuring a sequestration of the property of the defendant’s corporation and the division of the proceeds of the property amongst the creditors of the defendant pursuant to the provisions of the Code. The complaint alleged the recovery of a judgment against the defendant in the city court of Mew York, and the filing of the transcript and the docketing of the judgment in the office of the clerk of the county of Mew York, and subsequently the filing of a transcript in the office of the clerk of the county of Kings, being the place where.the principal business of the defendant was carried on, the issuance of an execution to the sheriff of Kings county and the return of said execution wholly unsatisfied, and that said judgment remained wholly unpaid, and that the plaintiff was insolvent.

The defendant by its answer denied that it had any knowledge or information sufficient to form a belief as to any of the allegations contained in the complaint except that alleging the incorporation of the defendant and that its principal place of business was located in the city of Brooklyn. This answer was stricken out as sham, and from the order thereupon entered this appeal is taken.

The ruling of the court below was clearly erroneous. In the case of Wayland v. Tysen, 45 N. Y., 281 , it was expressly held that the court has no power to strike out as sham an answer set

p. 410

ting up a general denial of the material allegations of the complaint. The answer of the defendants consisted of a general denial. It was in a form permitted by the Code. The allegations in the complaint were all necessary to its validity and therefore came distinctly within the provisions of the decision to which, reference has been made. The only case in which an answer can be stricken out as sham is where the allegations contained in the answer seek to avoid the admission of the truth of the allegations of the complaint.

Where a general issue is pleaded the right to strike out as sham has never existed.

The order should be reversed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.