(108 Misc. Rep. 196)

PEOPLE ex rel. SONDERN v. WALSH, Superintendent of Buildings, etc. (No. 2, Schoolhouse Case.)

(Supreme Court, Special Term, New York County. July, 1919.)

1. LIVERY STABLE AND GARAGE KEEPERS 42-METHOD OF MEASUREMENTS

UNDER BUILDING ZONE RESOLUTION.

Under section 20 of the building zone resolution, as amended June 6, 1919, providing that no garage for more than five cars may be erected within 200 feet from nearest exit from or entrance to a public school, the measurement should be made along sidewalk from in front of garage at its nearest entrance to the next means of exit or entrance in public school building.

2. MANDAMUS 3(1)-To COMPEL REVOCATION OF BUILDING PERMIT DENIED,

REMEDY BY APPEAL.

Where superintendent of buildings has issued a permit for erection of a garage within the distance from a public schoolhouse forbidden by section 20 of building zone resolution, as amended June 6, 1919, an application for a mandamus directing him to revoke the permit will be denied, in advance of a review of his action by the board of appeals. Application for a writ of peremptory mandamus by the People of the State of New York, on the relation of Frederic E. Sondern, against William E. Walsh, Superintendent of Buildings, Borough of Manhattan, City of New York. Writ denied.

McKinstry, Taylor & Patterson, of New York City (Martin Taylor and W. Randolph Montgomery, both of New York City, of counsel), for petitioner.

William P. Burr, Corp. Counsel, of New York City (William T. Kennedy, of New York City, of counsel), for defendant.

MCAVOY, J. [1, 2] This proceeding involves the same section of the building zone resolution referred to in the previous proceeding under the same title. The precise point here is as to the method to be adopted in measuring the distance between the exit and entrance of Public School No. 40 and the garage described above, and which it is claimed is 200 feet of such exit and entrance, within the meaning of said section 20 of the building zone resolution as amended June 6, 1919.

The meaning appears obvious that the measurement in this case may not be taken excepting with reference to the use of the entrance and exit to the school. The intent apparently was to guard the children in their use of exits and entrances to public schools from the danger, caused by the proximity of a garage, through the operation of vehicles near such exits and entrances, and possibly from the danger to be apprehended from fire or explosion near such exits and entrances. Obviously, then, the measurement should be made along the lines of travel—that is, upon the sidewalk from in front of the garage at its nearest entrance to the next means of exit or entrance in the public school building. When measured in this manner the restrictive clause in the zone resolution does not apply to the erection of the garage mentioned herein, so far as the school is concerned, and the motion must therefore be denied. With regard to the remedy, the same ruling will be made here as is made in the companion case decided herewith (108 Misc. Rep. 193, 178 N. Y. Supp. 192), if requested.

Judgment accordingly.

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(178 N.Y.S.)

ALBANY SAV. BANK v. KINGSBURY-LEAHY CO. et al.

(Supreme Court, Special Term, Albany County. October 21, 1919.)

1. PLEADING 350(3)—MOTION FOR JUDGMENT ON PLEADINGS ADMITS FACTS

PLEADED.

A motion for judgment on the pleadings, in accordance with Code Civ. Proc. § 547, admits every material fact in the answer, and plaintiff is entitled to judgment only if the facts admitted are not sufficient to raise any question of fact.

2. PLEADING

~350(3)—ON MOTION FOR JUDGMENT ON PLEADINGS ONLY MATE

RIAL ALLEGATIONS CONSIDERED.

On motion by plaintiff for judgment on the pleadings, only material allegations in the pleadings can be considered.

3. PLEADING ~8(3, 15)—ALLEGATIONS OF FRAUD AND CONSPIRACY MERE CONCLUSIONS.

Bare allegations of conspiracy or fraud do not state a cause of action, being mere conclusions.

4. CORPORATIONS 482(4)—ON FORECLOSURE OF MORTGAGE, ALLEGATIONS INSUFFICIENT TO SHOW FRAUD OF MORTGAGEE.

In a suit to foreclose a mortgage given by a corporation, where the averments of the complaint that it was executed in due form, and that the statutory certificate of consent of stockholders was adopted, etc., were not denied, allegations in the answer that the real purpose of the mortgage was to obtain money, so that one group of stockholders might buy out others, held insufficient to show that the mortgage was invalid; there being no averment that the mortgagee knew of the improper purpose.

Action by the Albany Savings Bank against the Kingsbury-Leahy Company, Theodore M. Cox, as trustee in bankruptcy, and others, to foreclose a mortgage. On motion by plaintiff for judgment on the pleadings. Motion granted.

Tracey, Cooper & Townsend, of Albany (Frederick Townsend, of Albany, of counsel), for plaintiff.

Mills & Mills, of Albany (Borden H. Mills, of Albany, of counsel), for defendant Cox.

RUDD, J. This action is in foreclosure. The complaint is in the usual form. The answer of the trustee in bankruptcy of the mortgagor company admits the material allegations of the complaint, denying certain conclusions of law, and sets up an affirmative defense alleging a conspiracy between two stockholders of the mortgagor company and an individual who is one of the directors of the company, alleging in substance that the avails of this mortgage loan made by the Albany Savings Bank upon the property of the Kingsbury-Leahy Company were used in whole or in part to declare a dividend of 50 per cent. on the stock of the company, for the sole purpose of enabling one of the two stockholders who received this dividend to purchase the stock of the other stockholder.

[1] The motion here made is by the plaintiff for judgment upon the pleadings under section 547 of the Code of Civil Procedure. The only question involved is one of law. The practice is the same as if this motion was made at the opening of the trial. The plaintiff, in

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order to succeed, must admit in fact every material fact set out in the answer, and after such admission the plaintiff is only entitled to judgment if the facts thus admitted are not sufficient to raise a question of fact. Emanuel v. Walter, 138 App. Div. 818, 123 N. Y. Supp. 491.

[2] Only material allegations of the pleadings can be considered. If in the answer there is any allegation of a material fact, upon which evidence must be taken to warrant judgment, the motion here sought cannot be granted. Godwin v. Liberty-Nassau Building Co., 144 App. Div. 164, 128 N. Y. Supp. 791.

[3, 4] The board of directors of the Kingsbury-Leahy Company, upon the application to the plaintiff for a loan, adopted the formal resolution as required. The bond and mortgage were executed by the corporation in due form. The statutory certificate of consent of the stockholders was given, and the resolution, above mentioned, was adopted. The purpose of the loan, as certified, was "to finance corporate obligations and to furnish additional capital for the said corporation."

It is not alleged in the answer of the trustee that the bank was in any way a party to the alleged conspiracy. It is alleged that, at the time of the negotiations and the closing of the loan, the real intent and purpose was to provide funds to enable one stockholder to buy out the other, and not for the formal purpose expressed in the directors' resolution; but it is not alleged that the plaintiff had any knowledge of the financial condition of the corporation, nor that the corporation was actually insolvent. On the other hand, the answer shows that on the books of the corporation there appeared a surplus exceeding the amount of the loan.

As was stated by counsel, the real situation presented by the answer is the allegation of the defendant trustee that the bank knew that the real object of the loan

"was one which might be illegal under certain circumstances, but would be entirely legal under other circumstances; the legality of the transaction depending on questions of fact as to which it had no information."

The answer does not allege that the bank knew the true purpose of the loan and the methods by which it was to be carried out; neither that the bank knew the real financial condition of the corporation, nor in fact knew that the contemplated dividend would result in a fraud on the creditors, and that the bank, in loaning the sum advanced upon the security of the mortgage, was a party by reason of its knowledge of what was the condition and the contemplated purpose.

The answer does not raise an issue of fact; it pleads certain conclusions. A conspiracy could not be established by alleging it as a conclusion. It can only be found as the result of certain facts, which at least point to a conclusion. Allegations of fraud or conspiracy are of no value as stating a cause of action. Wood v. Amory, 105 N. Y. 282, 11 N. E. 636.

We do not find in the answer in question such statement of facts, which require examination to determine whether or not as a con

(178 N.Y.S.)

clusion a conspiracy existed. There is no allegation of act or failure to act from which it might be determined that a conspiracy had been entered into. For the reasons briefly outlined upon the pleadings, there appears to be no reason why the relief sought by the plaintiff in equity should not be granted.

An order may be entered, upon proper affidavits as to regularity of procedure, providing for the appointment of a referee to compute the amount due.

FEIL et al. v. FEIL et al.

(Supreme Court, Special Term, Albany County. October 20, 1919.) 1. PLEADING

350(3)—MOTION FOR JUDGMENT ON PLEADINGS RAISES QUES

TIONS OF LAW ONLY.

On motion for judgment on the pleadings, under Code Civ. Proc. § 547, only questions of law are involved.

2. PLEADING →350(1)—PRACTICE ON MOTION FOR JUDGMENT ON PLEADINGS. The practice on motion for judgment on the pleadings, under Code Civ. Proc. 547, is the same as on motion for judgment at the opening of trial.

3. PLEADING 350(3)—ADMISSION OF FACTS BY MOTION FOR JUDGMENT ON

PLEADINGS.

On their motion for judgment on the pleadings, under Code Civ. Proc. § 547, defendants are called upon to admit every material fact set out in the complaint, and are entitled to judgment if the complaint does not state facts sufficient to constitute a cause of action.

4. PLEADING ~350(3)—ONLY MATERIAL ALLEGATIONS OF COMPLAINT CONSIDERED ON MOTION FOR JUDGMENT ON PLEADINGS.

On motion for judgment on the pleadings under Code Civ. Proc. § 547, nothing but the material allegations of the complaint can be considered. 5. PLEADING ~345(1)—DENIAL OF MOTION FOR JUDGMENT ON PLEADINGS IN

CASE OF NECESSITY FOR PROOF.

If in the pleadings there is an allegation of any material issue of fact on which evidence must be taken to warrant judgment, defendant's motion for judgment of the pleadings, under Code Civ. Proc. § 547, cannot be granted.

6. PLEADING 350(1)—MOTION FOR JUDGMENT ON PLEADINGS AFTER DEMURRER PROPER.

In an action to reform a deed, defendants' practice in moving for judgment on the pleadings, under Code Civ. Proc. § 547, after they had interposed demurrer to the complaint for insufficiency of the facts, was correct. 7. PLEADING 345(1)—ALLEGATION OF CONCLUSION DOES NOT PREVENT GRANT

OF JUDGMENT ON PLEADINGS.

An allegation in the pleadings in the nature of a conclusion is not a statement of a fact requiring the determination of a jury, and preventing the court from granting judgment on the pleadings on defendant's motion, under Code Civ. Proc. § 547.

8. PLEADING 9—ALLEGATION OF CONCLUSION INEFFECTUAL TO CONTROL ALLEGATIONS OF FACT.

If what a mortgagee and the mortgagor did with reference to foreclosure was not in and of itself a fraud upon parties who had procured reformation of the deed to the mortgagor, it was not made so, in an action by such parties to reform the referee's deed under foreclosure decree, by alleging it was induced by or through a desire to deceive and defraud. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

9. PLEADING 8(3, 15)—ALLEGATIONS OF FRAUD OR CONSPIRACY AS CONCLU

SIONS.

Mere allegations of fraud or conspiracy are valueless in stating a cause of action.

10. PLEADING 8(15)—ALLEGATION OF Fraud as CONCLUSION.

In an action to reform a deed given by a referee under foreclosure decree, allegation that the mortgagor caused title to be taken in the name of another to defraud plaintiffs held not an allegation of fact, but purely of a legal conclusion.

Action by Louisa Feil and Theresa Feil against Charles P. Feil and others. On motion by defendants for judgment on the pleadings. Motion granted, and judgment entered.

Henry J. Crawford, of Albany, for plaintiffs.

Andrew G. Seelman, of Albany (Daniel J. Dugan, of Albany, of counsel), for defendants.

RUDD, J. In this action the plaintiffs demand judgment reforming a deed given by a referee under a decree in foreclosure, and adjudging that the plaintiffs have a life estate in certain portions of premises covered by the referee's deed, and that such life estate is superior to a mortgage made and executed by the defendant Amelia G. Feil to the defendant Bennink, and for other and further relief as it may be determined.

The defendants interpose a demurrer to the complaint, alleging that the facts are not sufficient to constitute a cause of action. The defendants move for judgment on the pleadings, under section 547 of the Code of Civil Procedure.

[1] Upon this motion only questions of law are involved.

[2] The practice is the same as upon a motion for judgment at the opening of a trial.

[3] Upon this motion the defendants are called upon to admit every material fact set out in the complaint, and are entitled to judgment if the complaint does not state facts sufficient to constitute a cause of action. Emanuel v. Walter, 138 App. Div. 818, 123 N. Y. Supp. 491.

[4, 5] Nothing but the material allegations of the pleadings can be considered upon this motion. If in the pleadings there is an allegation of any material issue of fact upon which evidence must be taken to warrant judgment, the motion here sought cannot be granted. Godwin v. Liberty-Nassau Building Co., 144 App. Div. 164, 128 N. Y. Supp. 791.

[6] The defendants' practice in making this motion upon the pleadings is correct. National Park Bank v. Billings, 144 App. Div. 536, 129 N. Y. Supp. 846.

The undisputed facts out of which this cause of action is alleged to have grown are:

Carl F. Feil died seized in fee simple of a parcel of real estate in the city of Albany; the reasonable value of the property was between $2,000 and $3,000. That under the will of Carl F. Feil the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes