Hoag v. Hatch — 24 N.Y. St. Rep. 91

Majority

p. 91

Richard Hoag, Resp’t, v. Thyrsa E. Hatch et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

Pleading—Answer—When properly stricken out.

Where it conclusively appears that an answer is sham in fact, and no case is shown entitling the answering defendant to any favor, an order summarily striking out the answer should he sustained.

This is an appeal by defendant John F. Hatch from an order of the special term made in the action, May 15, 1888. The action was brought to foreclose two mortgages held by plaintiff upon the same premises and made by defendants. The summons and complaint were personally served upon the defendants on the 22d day of March, 1888. On the 11th day of April, 1888, at 7:30 p. m., defendants served an answer, which contained no denial of any allegation in the complaint. On the 30th day of April, 1888, plaintiff served notice of motion, at special term, to strike out the answer as sham, frivolous, and for general relief. The same day, at 8:45 p. M., and after the closing of the office of plaintiff’s attorney, defendants served an amended answer. Thereupon an order to show cause why the amended answer should not be stricken out as sham and frivolous, was duly made, and resulted in the order which the appellant now seeks to review. On the hearing at special term, the defendants’ counsel admitted that the only claim of defendants was that a small payment had been made by them upon the first mortgage, and not credited. Thereupon, by consent of

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"both parties, the order in question was made; directing a reference to determine the question of said payment on the first mortgage, and in case the defendants did not have the reference, then their amended answer to be stricken out. This is the order dated May 15, 1888. On the day appointed for the hearing, the defendants failed to appear, and the plaintiff made proof of the amount due on the mortgage in controversy.

These facts, with others, were duly reported to the court by the referee, and upon this report, and on affidavit of default, the order of May twenty-second, striking the answer and directing a reference to compute, etc., was made; reciting the consent of parties to the form of the order of May fifteenth, now sought to be reviewed. The order of May twenty-second, notice of entry and date of reference to compute, were served on defendant’s attorney, and due personal service thereof admitted by him on the 23d day of May, 1888, and he, at the same time, signed a waiver, under title of the cause, m the following words:

“ Defendants hereby waive notice of all further proceed" ings herein, except notice of sale, and the service of all papers, except such notice of sale.

Dated May 23, 1888.

B. B. MASON,

Att’y for Defts.”

Thereafter the reference to compute was had, a report made and judgment of special term made, entered and served with notice of entry. Notice of appeal from the judgment was served July 21,. 1888. No exceptions to the judgment or any report of fact or law has been served or filed by defendants.

The defendant, Thyrsa E. Hatch, heretofore appealed from said judgment, and gave notice of review of said order of May fifteenth, and this general term, at November, 1888 term, affirmed the judgment. The mortgaged premises have been sold. See 19 N. Y. State Rep., 823.

A. W. Boynton, for resp’t; B. B. Mason, for app’lt.

The special term struck out the defendant’s answer as sham, and. directed judgment thereon as frivolous. The complaint was for the foreclosure of two mortgages, both on the same premises, and both executed by the defendant, Thyrsa E. Hatch, alone. The bond which one mortgage was given to secure, was executed by Thyrsa E. Hatch and John F. Hatch, her husband. The other bond was executed by Thyrsa E. Hatch alone. Judgment has been entered upon the order, and the' premises sold. Thyrsa E. Hatch took an appeal from the judgment which was affirmed. Now the defendant, John F. Hatch, appeals from the order, and a motion is made that the appeal be dismissed. We do not see how an appeal can aid him. The

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complaint does not allege that he has any interest in the mortgaged premises, and the answer claims none. All the title or interest covered by the mortgage has been effectually disposed of, pursuant to the judgment of the court valid against the mortgagor. The present appellant had no interest in the mortgaged premises to protect. He had an interest in the amount of the debt which one of the mortgages was given to secure, but the papers do not inform us that any deficiency remains after applying the proceeds of the sale.

We think for these reasons the appeal should be dismissed. There are other reasons. After the order now appealed from was served, and a further order made to ascertain the amount due on the mortgage, the defendants’" attorney gave the plaintiff’s attorney a stipulation waiving the service of all further papers except of the notice of sale. This was equivalent to a consent on the part of the appellant that the plaintiff might proceed upon the order, without further opposition from him. The plaintiff thereafter perfected ex parte his judgment.

We think after the plaintiff has acted in good faith upon the stipulation, omitting to make such an entry and service of the order as would limit the time in which this appeal could be taken, that the defendant ought to be bound by the consent thus implied, unless he shows cause to the court why he should be relieved from it.

The affidavits show pretty conclusively that the answer was sham in fact, the only debatable question being whether it was not technically exempt from being summarily stricken out. No case is shown which entitles the appellant to any favor, and we dismiss the appeal, with ten dollars costs.

Learned, P. J., and Ingalls, J., concur.