Thompson v. . the Erie Railroad Company
New York Court of Appeals
Appeal from the judgment of the Géneral Term of the Supreme Court of the Third department, affirming an order of the Special Term striking out part of an answer interposed by defendant as sham, and holding the rest of the answer frivolous, and directing judgment for the respondents. This action was for the recovery of an undeclared dividend for the year 1869, upon preferred stock.
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Appeal from the judgment of the Géneral Term of the Supreme Court of the Third department, affirming an order of the Special Term striking out part of an answer interposed by defendant as sham, and holding the rest of the answer frivolous, and directing judgment for the respondents. This action was for the recovery of an undeclared dividend for the year 1869, upon preferred stock. The New York and Erie Railroad Company (the predecessor of the appellant), became bankrupt in 1859. It was largely indebted to mortgage creditors and others. By a contract between the stock-j holders and creditors,…
1Opinion of the Court
Folger, J. First.
Had the Special Term the power to strike out the first defence set up in the answer as sham % A sham answer is one that is false, and these words, as applied to an answer, are synonymous. (The People v. McComber, 18 N. Y., 320.) A defence is sham, in the legal meaning of the term, which is so clearly false in fact that it does not in reality involve any matter of substantial litigation. (Id.) The first defence set up in the answer is of two parts. The second part avers that “ the affairs of the defendant are managed by seventeen directors, and the plaintiffs have not asked…
2Cases cited4 opinions
- Sheppard v. . SteeleNew York Court of Appeals · 1870
- Stacy v. . GrahamNew York Court of Appeals · 1856
- Wall v. . the Buffalo Water Works CompanyNew York Court of Appeals · 1858
- Briggs v. . BergenNew York Court of Appeals · 1861
3Cited by51 opinions
- General Investment Co. v. Interborough Rapid Transit Co.New York Court of Appeals · 1923
- Dwan v. MassareneAppellate Division of the Supreme Court of the State of New York · 1922
- Matter of KingNew York Court of Appeals · 1901
- HCE Associates v. 3000 Watermill Lane Realty Corp.Appellate Division of the Supreme Court of the State of New York · 1991
- Strong v. . SproulNew York Court of Appeals · 1873
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