McLEAN v. JULIEN ELECTRIC CO.

McLEAN v. JULIEN ELECTRIC CO. N. Y. Superior Court; Special Term, May, 1892. ;i. Pleading; admissions.] The law will infer, in absence of proof to the contrary, that capital invested in business yields an income, and that a domestic corporation is a stock corporation. An answer, therefore, in an action for taxes, which admits the allegation of the complaint that the defendant is a domestic corporation, and only denies the inferential fact that it derives income from its capital, creates no triable issue. ■2. The same ; dental of informatioti, etc., of matters of record.J A denial on information and belief of the allegations in a complaint in an action for taxes, as to the appointment of plaintiff as tax receiver, the assessment of defendant, the confirmation of the assessment, and delivery of assessment roll to plaintiff with warrant for collection, etc., creates no issue ; such allegations refer to matters of record open to public inspection, and want. of knowledge and information can only arise from an unwillingness to learn the facts. Motion for judgment on the answer as frivolous. The action was brought by George W. McLean,, receiver of taxes, against the Julien Electric Company.. The complaint alleged that plaintiff was appointed! receiver of taxes ; that defendant was a domestic corporation deriving an income or profit from its capital, and that" it resided in the city of New York ; that the tax commissioners duly assessed defendant in a certain sum as a. moneyed or stock corporation, having its principal place of business in the city of New York ; that the assessment: was confirmed by the board of aldermen, and a tax was-duly imposed upon defendant for a specified sum; that the assessment roll was delivered to the receiver of taxes-with a warrant for collection annexed; and that the: defendant was in arrears, and the tax remained unpaid,, although payment had been demanded of an officer of defendant. The answer admitted that defendant was a domestic corporation, but denied that defendant derived income from its capital. It also admitted that defendant resided in the city of New York, and that the taxes claimed had. not been paid. As to the remaining allegations of the-complaint defendant denied knowledge or information. Plaintiff moved for judgment on the pleadings for the. frivolousness of the answer. John C. H. Myers, plaintiff’s attorney, for the motion. D.J.M. O' Callaghan, defendants’ attorney, opposed. Perhaps this rests in part upon the name of the corporatio n. "The court may infer -the existence of a power implied in the business, from a name implying organization for that business (Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cas. 393). [MAJORITY — McAdam, J.] McAdam, J. The law will infer (in the absence of proof to the contrary) that capital invested in business yields an. income, and that a domestic corporation is a “ stock” corporation, so that the denial of these inferential allegations creates no triable issue. The other allegations of the complaint refer to matters of record open to public inspection, in respect to which the denials “ of want of knowledge or information” create no issue, for the reason that such want of knowledge and information arises from unwillingness to learn the facts (2 Wait’s Pr. 423). To hold otherwise would encourage willful and intentional ignorance, by making such deliberate want of knowledge and information a good plea (Ib.). The court of common pleas justly held that “ to permit a party so circumstanced, with every means of knowledge within his power, to answer that he has no knowledge or information sufficient to form a belief, would be to sanction a palpable evasion (1 E. D. Smith R. 554). The answer is frivolous, and the motion for judgment thereon must be granted, with costs.