Summary
In Zivi v. Einstein, 2 Misc. 177, the Court of Common Pleas reversed a judgment of the General Term, City Court, which struck out an answer as sham, approving the rule laid down in Bank v. Inman, 5 N.Y.S. 457. This case makes no mention of Sherman v. Boehm, 15 Daly, 42, decided by the same court, but by different members.
Summary of this case from Humble v. McDonoughOpinion
January, 1893.
James Murphy, for plaintiff (respondent).
B.F. Einstein, for defendants (appellants).
The judgment being by default, for want of an answer, is not appealable to this court. Keller v. Feldman herewith decided.
But, the appellants are not remediless. We have unquestionable jurisdiction to review the order affirming the order striking out the answer; and should we find error in the decision complained of, it will be the duty of the court below to reinstate the answers and try the case on the issues raised.
The action proceeds upon section 34 of the act of 1875, chapter 611, and is prosecuted to enforce against the defendants as stockholders, a debt or liability of the Rubolio Company evidenced by a judgment. It is equivocal on the face of the complaint whether it counts upon the original liability or the judgment; but, take the case in either aspect, and it is sufficiently apparent that the answers controverted material allegations of the complaint.
If the action proceeds upon the original indebtedness of the company, then the answers traverse in due form (Code, § 500) the alleged loan to the company and its present liability therefor, both of which facts it is incumbent on the plaintiff to establish. If the action be upon the judgment, then the answers traverse the judgment, and the company's submitting liability on it, both of which facts it is incumbent on the plaintiff to prove. It is manifest, without more, that the court below had no authority to strike out the answers. Robert Gere Bank v. Inman, 51 Hun, 97, opinion of FOLLETT, J., collecting all the cases.
It is argued, however, that the action being on the judgment, the defendants are presumed to be cognizant of it, and for support of the proposition our own decision in Ketcham v. Zerega, is cited with apparent confidence. But there the judgment was against the party himself, whereas here the judgment is against a stranger. Miller v. White, 50 N.Y. 141. Again, it is urged that the existence of the judgment is not an issue of fact; but in this state the plea of nul tiel record is triable by the jury. Fasnacht v. Stehn, 53 Barb. 650.
But, should there be a judgment in form against the Rubolio Company the defendants may impeach it for defect of jurisdiction, and yet again, should the judgment exist and be valid, the answers imposed upon plaintiff the obligation to prove it still unsatisfied.
Hence, as the answers, by denial, put in issue essential allegations of the complaint, they cannot be stricken out as sham. Gere Bank v. Inman, 51 Hun 97.
The argument at the bar ranged over a variety of interesting topics; but, indisposed to anticipate the course of the trial, we are content to adjudicate simply the question before us.
Order reversed. Appeal from judgment dismissed. No costs to either party. Trial directed on the answers stricken out, or any amended answers that may be interposed by leave of the court below.
Order to be settled on notice.
BOOKSTAVER and BISCHOFF, JJ., concur.
Judgment accordingly.