Misc.]

Supreme Court, January, 1918.

Matter of the TOWN OF GHENT.

(Supreme Court, Albany Special Term, January, 1918.)

Election Law-local option questions - when elector not entitled to vote.

An elector of a town while absent from home in the army or the navy is not entitled to vote upon local option questions submitted to the voters of the town.

MOTION by petitioner to permit certain electors of the town to vote upon the local option questions.

William B. Daley and Cornelius Shufelt (J. Rider Cady, of counsel) for petitioner.

T. J. Flinn, for State Commissioner of Excise.

RUDD, J. The court feels compelled to deny the motion for the reason that the making of an order as requested by the petitioner would avail nothing.

The foundation of the motion made by the petitioner is that certain electors of the town who were and still are in the service of the nation, in the army and navy, were not permitted to vote upon the local option questions submitted to the voters of the town at the last election.

The residents of the town who were at the time absent in the service were under the Constitution entitled to vote. The provisions of the Constitution, however, only become practically effective when legislation is had.

An amendment to the Election Law by chapter 815 of the Laws of 1917 provided a method whereby the electors referred to in the petition, then in the service of the nation, were permitted to vote for candidates

Supreme Court, January, 1918.

[Vol. 102. for public office and upon the constitutional amendments submitted to the people at the last general election, but no provision was made by such amendment to the Election Law for the casting of ballots by those in the service upon the local option questions submitted in the town of Ghent at the same election.

If at this time an order should be made calling for a new town election and providing for a resubmission of the local option questions at such election the electors of the town who are in the service would not be permitted to vote, no machinery having been provided by legislative enactment.

For the reason thus briefly stated this court must deny the motion, and an order may be entered to that effect.

Motion denied.

GEORGE COOK, Plaintiff, v. DARIUS BROUGHTON et al., Defendants.

(Supreme Court, Steuben Special Term, January, 1918.)

Pleading complaint - foreclosure of mortgages - frivolous answerjudgments-motions and orders.

In an action to foreclose a mortgage given by defendant, an answer which after a denial upon information and belief of each and every allegation of the complaint alleges upon information and belief that on a certain date he by his agent, naming him, offered and duly tendered to the attorney and agent of plaintiff, naming him, the full amount due on the alleged bond and mortgage together with interest to date is frivolous on its face, and plaintiff's motion for an order overruling the answer as frivolous and for judgment on the pleadings will be granted.

MOTION by plaintiff for an order overruling defendants' answer as frivolous and for judgment on the pleadings.

Misc.]

Supreme Court, January, 1918.

Burrell & Simpson, for plaintiff.

J. B. Hargrave, for defendants.

CLARK, J. This is an action brought to foreclose a mortgage given by the defendant Darius Broughton to one Clossey to secure the payment of the sum of $931,73, the said mortgage having been given to secure part of the purchase price of a portion of the premises described therein, and it having been duly transferred to plaintiff before the commencement of this action.

It appears from the complaint that defendant Darius Broughton has paid part of the sum secured by said mortgage, to-wit: $300, leaving an unpaid balance of $631.73, with interest from April 1, 1916.

The defendant Darius Broughton answers the complaint and alleges as follows: First. "That upon information and belief, denies each and every allegation in said complaint."

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Further answering the said complaint defendant alleges upon information and belief that on the 10th day of July, 1917, " The defendant by his agent, A. J. Jones, offered and duly tendered to L. J. Simpson, the attorney and agent of the plaintiff, the full amount due on said alleged bond and mortgage, together with interest thereon to said date

*

The giving of this mortgage was a personal transaction with the defendant Darius Broughton, and he certainly has personal knowledge of it and whether or not the mortgage was ever given. Under the circumstances defendant's denial of the execution of this mortgage in the form adopted is no denial at all. Defendant knows whether or not he executed the mortgage, and to permit him to come in when he has that knowledge and say by his answer" that upon information and belief he denies each and every allegation of

Supreme Court, January, 1918.

[Vol. 102.

the complaint" would be making something of a farce of the whole proceeding. A defendant cannot be permitted to deny his own personal transactions on information and belief.

The answer in the form adopted here being an attempt to deny on information and belief a transaction of which the answering defendant had full knowledge, it being a personal transaction with him, raises no issue whatever, and is, therefore, frivolous.

Moreover, by the 2d paragraph of the defendant's answer, he alleges that he tendered payment of the very mortgage that by the 1st paragraph of his answer he attempts on "information and belief" to deny that he ever made. Nothing more is needed to show from the pleading itself that it is frivolous, and it fully raises the inference that it was not made by defendant in good faith. Rochkind v. Perlman, 123 App. Div. 808; 1 Ency. Pl. & Pr. 811; City of New York v. Matthews, 180 N. Y. 41; Preston v. Cuneo, 140 App. Div. 144; Dahlstrom v. Gemunder, 198 N. Y. 449.

Defendant urges that at any rate judgment cannot be directed on the pleading under section 537 of the Code of Civil Procedure, for the reason that he pleads a tender of payment, but in this he is in error. He pleads merely a legal conclusion, and no facts whatever that constitute a tender.

The answer being upon its face frivolous, and raising no issue whatever, plaintiff could properly apply for judgment on the pleadings. Code Civ. Pro. § 537.

This motion is granted, the answer is overruled as frivolous, and judgment directed in favor of the plaintiff for the relief demanded in the complaint, with ten dollars costs.

Ordered accordingly.

Misc.]

Supreme Court, January, 1918.

GEORGE W. HOUK, Plaintiff, v. WILLIAM D. VAN HORN et al., Defendants.

(Supreme Court, Erie Special Term, January, 1918.)

warrant of

Attachment motions and orders - contempt — default sheriffs Code Civ. Pro. §§ 655, 677 - Judiciary Law, § 773.

Where certain bonds held by a trust company as collateral security for two notes owned by it and made by defendant were levied upon under a warrant of attachment issued against him, and the trust company out of the proceeds of a sale of the bonds not only paid itself the amount of said notes but also took the same course with regard to two other notes payable to defendant and owned by the trust company, a motion to compel it to pay over to the sheriff the amount of the last two notes or, in default thereof, to be punished for a contempt of court, will be denied.

In view of the provisions of sections 655 and 677 of the Code of Civil Procedure and section 773 of the Judiciary Law an action is maintainable to recover damages for the alleged loss or injury occasioned by the payment of the last two notes.

MOTION to compel the Citizens Commercial Trust Company of the city of Buffalo to pay to the sheriff of Erie county the sum of $4,500, or in default thereof to be punished for a contempt of court.

M. F. Dirnberger, Jr., for plaintiff, for motion.

Strebel, Corey, Tubbs & Beals, for defendant Van Horn.

Wilcox & Van Alen (Harold G. Aron, of counsel), for Citizens Commercial Trust Company, appearing specially, opposed.

BISSELL, J. This is a motion on return of an order directed to the defendants, William D. Van Horn and