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Alexander v. Aronson

65 A.D. 174 Court N.Y. App. Div. English

Delivered by Ingraham, J.:

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p. 174
Sophia B. Alexander and Sallie G. Merriman, Respondents, v. Caspar Aronson, Appellant, Impleaded with Others, Defendants.

Headnote

Mortgage foreclosure — a denial on information and belief cannot be stricken out as sham.
An answer, interposed in an action brought to foreclose a mortgage, which denies any knowledge or information sufficient to form a belief as to the allegations of the complaint averring the execution and delivery of the bond and mortgage and a default in payment, cannot be stricken out as sham.
Appeal by the defendant, Caspar Aronson, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1901, as directs that the answer interposed by said defendant be stricken out as sham.
Nathaniel Oohen, for the appellant.
Hoffrna/n Miller, for the respondents.

The action was brought to foreclose a mortgage. Paragraph 1 of the complaint sets forth the execution and delivery by the defendants Aronson and Cohen of the bond; paragraph 2, the execution and delivery by the defendant Aronson of the mortgage to secure the payment of the bond, and paragraph 3, that the defendants

p. 175
have failed to comply with the conditions of the bond and mortgage by omitting to pay an installment thereon. The defendant Aron-son, in answer, denies any knowledge or information sufficient to form a belief as to the allegations of paragraphs 1, 2 and 3 of the complaint, and this answer is duly verified. It is in form such as is authorized by subdivision 1 of section 500 of the Code which allows a denial of “ any knowledge or information thereof sufficient to form a belief,” and thus as to these allegations of the complaint the general issue was raised.

It has long been settled in this State that in an action in equity, as well as at law, where the answer raises the general issue as to any material allegations in the complaint, that issue must be determined by a trial, and that a denial which raises such an issue cannot be stricken out as sham. This was settled by the case of Thompson v. Erie Railroad Company ( 45 N. Y. 468 ), and since that time it has never been seriously disputed. The question has been several times presented to this court, and it has been uniformly held that where a material allegation of the complaint is denied by the answer such denial cannot be stricken out as sham. (Mutual Life Ins. Co. v. Toplitz, 58 App. Div. 188 ; Howe v. Elwell, 57 id. 357; Reese v. Walworth, 61 id. 65.)

It follows that the order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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