Henry v. Fowler
New York Court of Common Pleas
Appeal by the plaintiff from an order of special term denying a motion to strike out an answer as sham and irrelevant. The action was for damages for the conversion of a United States bond.
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Appeal by the plaintiff from an order of special term denying a motion to strike out an answer as sham and irrelevant. The action was for damages for the conversion of a United States bond. The answer alleged—1st, that the bond had been given defendant in trust for certain purposes; and, 2d, that the defendant had a lien on the bond, for professional services, to the amount of $1,000. A motion was made at special term to strike out the answer as sham and irrelevant, and on the hearing it appeared that the plaintiff, being sick and regarding herself as in great danger, sent for her attorney,…
1Opinion of the Court
By the Court.
Daly, F. J.
This motion should have been granted. The answer is false upon the defendant’s own showing. It avers that the bond mentioned in the complaint, and the proceeds thereof, are still held by the defendant, upon and subject to the trusts alleged to have been created by the plaintiff. This answer was sworn to on the 13th of April, 1869, and the defendant admits in his affidavit, that on the 25th day of July, 1868, he sold the bond to Yermilyea & Co., a fact which he could not deny, as the affidavit of Mr. Yermilyea, proving the fact, was used by the plaintiff, with the other…
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