Munn v. Barnum

1 Abb. Pr. 281, 12 How. Pr. 563

• Court: New York Supreme Court
• Decided: January 15, 1855
• Status: Published

Opinion

Mitchell, J.

There is some reason to suppose that the answer was not put in good faith, and that what is stated as on information and belief, was never communicated to the defendant. He says he believed it from an examination of the books of the company—that examination might lead to a suspicion that the plaintiffs did not own the stock, but is very slight evidence of the fact. It is enough, however, to prevent his answer, sworn to by him, and now substantially reaffirmed by affidavits, from being treated as sham. (Mier v. Cartledge, 8 Barb., 75, Caswell v. Bushnell, 14 Barb., 393).

After the decision in the last case, this court adopted in this district a rule to give a preference on the Circuit Calendar to causes in which there was reason to believe that the defence was put in for delay. The plaintiffs may probably obtain relief in that way.

The answer sets up a custom as to the mode of transferring the stock. It very probably can have no influence on the case; but that may be better settled at the Circuit than on this special motion.

The answer concludes by demurring to part of the relief sought. The defendant cannot demur and answer to the same matter; he must, unless he elect to waive his answer, strike out this demurrer.- The evil of allowing it to remain, is that the plaintiffs might feel bound to have the demurrer passed on before he could go to trial.

Ro costs are given to either party.