
    Zivi v. Einstein and Others.
    
    (City Court of New York—General Term,
    November, 1892.)
    In an action against defendants as stockholders in a domestic corporation,, the complaint alleged the recovery of a judgment against the corporation, together with the issuing and return unsatisfied of an execution. The defendants denied any knowledge or information as to the fact of the judgment and execution, and rested thereon, for a defense. On proving the facts disputed, the answer, on motion of plaintiff, was stricken out as sham. Held, proper; that as the matters in dispute consisted of public records, the ignorance thereof by defendants was intentional.
    Appeal from an order striking out answer as sham.
    
      James Murphy, for plaintiff (respondent).
    
      Townsend, Dyett & Einstein, for defendants (appellants).
    
      
       Reversed on appeal. — [Rep.
    
   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 alleged 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 fact 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 E. Co., 28 Abbott’s New Cas. 249; 19 N. Y. Supp. 906. And the order made was right, and must be affirmed, with costs.

Fitzsimohs, J., concurs.

Newburger, J. (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. Julien Electric Company, 28 Abb. New Cas. 249, referred to by my associates, was a case in which the answer was stricken out as frivilous, and not as being sham.

The order appealed from should, therefore, be reversed, with costs.

Ehrlich, Ch. J. The judgment entered herein must be affirmed with costs, on opinion filed this day on affirming the order herein.

Fitzsimons, J., concurs.  