
    Bernard Zivi, Resp’t, v. Elias Einstein and Louis Nelke, App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed November 25, 1892.)
    
    Pleading—Sham answer.
    In an action against stockholders of a business corporation the complaint alleged the recovery of judgment against the company and the issuing and return of an execution unsatisfied; the answer denied any knowledge or information as to the judgment and execution. Held, that the matters in dispute consisting of court records open to public inspection, the answer was properly stricken out as sham.
    (Newburger, J., dissents.)
    Appeal from order striking out answer as sham.
    
      James Murphy, for resp’t; Townsend, Dyett & Einstein, for app’lts.
   Ehrlich, Ch. J.

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 defendant 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. Julien Electric Co., 28 Abb. N. C., 249; S. C., 19 N. Y. Supp., 906.

And the order made was right, and must be affirmed, with costs.

Fitzsimons, J., concurs.

Newburger, J.

(dissenting.)—This is an appeal from an order striking out defendant's 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. N. C., 249, 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.

Order affirmed, with costs.  