MUNN a. BARNUM

MUNN a. BARNUM. Supreme Court, First District; Special Term, January, 1855. Sham Answer.—Demurrer. Slight circumstances indicating good faith, are sufficient to prevent a verified answer from being stricken out as sham. The defendant cannot demur and answer to the same matter. Motion to strike out an ansvyer as sham. This action was brought to recover the price agreed to be paid by the defendant to Orson D. Munn and others, plaintiffs, for two hundred and twenty-three shares of the stock of the Crystal Palace Association, at seventy-one dollars per share. It appeared from the complaint that the plaintiffs had, in the spring- of 1854, commenced a suit against the Crystal Palace Association for the purpose of preventing the payment of certain debts alleged to have been illegally contracted by them. They obtained an injunction restraining such payment. The defendant, having been then elected President of the Association, and being desirous to compromise the litigation, agreed to purchase from the plaintiffs the shares of the stock which they then held, and which they stated to be two hundred and twenty-three in number, at the price above stated, in consideration of their withdrawing proceedings against the Association. The answer, which was verified, alleged that the defendant was induced to enter into the contract by fraud, and that the plaintiffs did not, at the time of making the contract, own so much of the stock as they represented, but purchased it after-wards when the stock was sold at a much lower rate. It also contained a clause demurring to a part of the relief sought. Mr. O’ Gorman, for the motion. Mr. Platt, opposed. [MAJORITY — Mitchell, J.] 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.