
    Caroline De Wolf Theobald, Suing for Herself as Stockholder and All Other Stockholders of the United States Rubber Company in Like Situation Who Shall Choose to Make Themselves Parties to This Action, Respondent, v. The United States Rubber Company and Samuel P. Colt, Appellants, Impleaded with Walter S. Ballou and Others, Defendants.
    First Department,
    June 13, 1913.
    Pleading — reply — denial of knowledge or information sufficient to form a belief — when pleading should be made more definite.
    Where in an action by a stockholder against a director of a corporation who is alleged to have misappropriated its moneys, the plaintiff has been ordered to reply to a defense alleging that payment of the moneys to the defendant was authorized by the directors and stockholders, and the order provided that the plaintiff should have access to the records of the corporation in order to make her reply definite and certain, which privilege 'has not been refused, an allegation of lack of knowledge or information sufficient to form a belief as to the allegations of the defense is insufficient, and the plaintiff will be required to make the reply more definite and certain.
    Appeal by the defendants, the United States Rubber Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the llth day of March, 1913, denying a motion made by the defendant Samuel P. Colt that the plaintiff’s reply be made more definite and certain.
    
      Francis Lynde Stetson, for the appellants.
    
      Jacob E. Salomon, for the respondent.
   Scott, J.:

The plaintiff, a stockholder of the United States Rubber Company, sues the appellant Samuel P. Colt upon a complaint alleging, in substance, that he, being a director of the said United States Rubber Company, unlawfully took and retained a large sum of money, the property of the company, and that other defendants, being also directors of the company, willfully and knowingly permitted him to do so.

The appellant, by his answer, admits the receipt of the money, but denies that it was received unlawfully, and by way of separate defenses alleges that the sum received by him was paid pursuant to a contract duly authorized by the directors, and further that the said contract was duly ratified by the stockholders of the rubber company, with full knowledge, at a general meeting. Incorporated in the answer and appended thereto and made part thereof by reference are copies of certain documents and resolutions forming part of the records of the rubber company, and apparently serving to support the allegations of the separate defenses.

Upon appellants’ motion and upon the consent of plaintiff an order was heretofore made requiring the plaintiff to reply to the new matter incorporated into defendants’ answer and consisting of separate defenses alleged therein. Into this order was inserted a provision that, for the purpose of enabling the plaintiff to make definite and certain her reply to said new matter, she should have an examination of the by-laws of the rubber company, the records of the corporate proceedings, and of the contracts, reports and other writings referred to in said separate defenses.

It is not charged that any obstacle has been interposed to such examination by plaintiff, and yet she has seen fit to reply by denying, for lack of knowledge or information sufficient to form a belief, the existence of the bontracts, resolutions and the like set up by appellant in his separate defenses and forming a part of the records of the rubber company of which she was accorded the right of examination for the very purpose of avoiding an indefinite and uncertain reply.

This manner of pleading has frequently been condemned. (Steinway v. Steinway, 74 Hun, 423; Dahlstrom v. Gemunder, 198 N. Y. 449; Kirschbaum v. Eschmann, 205 id. 127.)

The plaintiff has knowledge or the ready means of ascertaining whether or not the contracts and resolutions pleaded by appellant were actually executed and adopted, and may not put their existence in issue by a denial of knowledge or information sufficient to form a belief. Of course, if she cannot deny their execution and existence, she is still at liberty to attack their validity or force in any way she sees fit.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted to the extent indicated, with ten dollars costs.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent indicated in opinion, with ten dollars costs. Order to be settled on notice.  