Baumfeld v. German Theatre, Inc.

135 A.D. 497, 120 N.Y.S. 349, 1909 N.Y. App. Div. LEXIS 4004

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1909
• Status: Published

Opinion

Scott, J.:

. This is a representative' action brought by plaintiff as a stockholder of the defendant corporation, in behalf of himself and other stockholders, to set aside certain instruments and for.an accounting by the individual defendants. The defendant and appellant Milica Blitz interposed an answer to the complaint in which she attempted to deny knowledge or- information sufficient to form a belief as to all the .allegations of> the complaint, except that,one which alleged that she is a, resident of New York and the wife of Henry Blitz. The complaint charged her, as well as the other individual defendants with fraud and conspiracy. . On motion her answer was stricken out ujDon the ground that it. was “frivolous, and does not raise any issue and is insufficient in law on its face.” After a motion on her part for leave to answer anew had been, denied, the court made a formal decision finding all the-facts alleged .in the complaint and directing an interlocutory judgment for an accounting by said Milica Blitz, and such an interlocutory decree was, therefore, made;

This appeal is only from the interlocutory judgment and does not bring ;up in review the order striking out the answer. If, therefore, the interlocutory decree appears to be supported by the decision it must be affirmed. The decision recites the order striking out appellant’s answer and the denial of her motion for leave, to plead anew. Nothing whatever appears as to what has become of the other defendants named in the complaint. For all that is,shown by the recitals they may have appeared "and answered and the action may still be at issue as to them.

Except where a' severance is permitted our practice does not allow the entry of separate or successive judgments in the same action. -If there is to be an accounting the interlocutory judgment should call upon all- those liable to account to do so. From the recitation, or lack of recitation, in the decision it is manifest that the interlocutory decree was prematurely entered and for that reason, it must be reversed, without prejudice to the right of the plaintiff at' the proper time, and when all of the necessary parties are before the court, to move for another decree.

If the appellant had brought up for review the order striking out the answer we should have found much difficulty in sustaining it. The form of the denial was such as is accepted in this department as a sufficient compliance with section 500 of the Code of Civil Procedure (Hidden v. Godfrey, 88 App. Div. 496), and while many of tlie allegations of the complaint are presumptively within defendant’s .knowledge, and should be denied, if denied at-.all, positively, there are others as to which she may have no knowledge. The judgment appealed from must be reversed, with costs and disbursements, without prejudice to plaintiff’s right to again move for judgment at the proper time, and when all necessary ¡larties are before the court.

Ingraham, McLaughlin, Laughlin and Houghton, JJ., concurred.

Judgment reversed, with costs, without prejudice to plaintiff’s right to move for judgment, as stated in opinion. Settle order on notice.