Moody v. Belden — 38 N.Y. St. Rep. 722

Majority

p. 722

William B. Moody, App’lt, v. Francis W. Belden et al. Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed June 2, 1891.)

Headnote

Foreclosure—Pleading—Inconsistent defenses.

A denial by the defendants in an action of foreclosure that they have or claim an interest in the premises which accrued subsequent to the lien of the plaintiffs mortgage is not inconsistent with the further defense of payment. Both defenses may stand.

Appeal from so much of an order of the special term, entered in Wayne county on the 15th day of December, 1890, as denied the plaintiff’s motion for judgment and a bill of particulars, and as. also denied his motion to make definite a certain paragraph in the answer of the defendants containing denials and allegations of payment.

S. B. McIntyre, for app’lt; Camp & Dunwell, for resp’ts.

The motion made by the plaintiff at special term was: (1) For the direction of judgment in his favor upon the answers as frivolous. (2) That if that part of the motion was-denied, then that the defendants be required to make definite and certain the allegations of such answers. (3) That a bill of particulars of certain payments alleged as set-offs be delivered by the defendants to the plaintiff.

The court at special term denied the motion for judgment and for a bill of particulars, but that part directing the defendants to make the answers in certain particulars definite and certain, was granted.

The denial by the defendants that they have or claim any interest or lien upon the premises which accrued subsequent to the lien of the plaintiff’s mortgage, does not seem to be inconsistent, with their further defense of payment. Under allegations contained in the complaint that such defendants were subsequent, lienors, the latter had an undoubted right to answer denying such an allegation. If they, at the trial, should be defeated in that contention, there appears to be no legal objection to their relying upon other matters to show that the amount of the plaintiff’s recovery is not as great as is claimed, and that, in fact, his bond and mortgage, of which he is the assignee, have been entirely extinguished by payment. The question is not whether it was necessary for the defendants to make this answer, but it is rather whether they had a right to do it. We know of no reason, having been thus brought into court undeh the allegation named, why a complete denial of the plaintiff’s claim should not be made available to the defendants. The cases cited by the learned counsel for the appellant-have, in this aspect of the case> in our judgment, no application. Undoubtedly, if the sole defense relied upon by the defense was the fact that they were not lienors subsequent and subordinate to the plaintiff, they could

p. 723

have omitted to answer on that ground. But they have not chosen to'place themselves exclusively upon that defense. They have coupled it with a substantial, affirmative defense that in case they should be declared to be subsequent lienors, that still their rights were intact, because the claim made by the plaintiff had Tceen either greatly reduced or entirely extinguished.

In respect to the bill of particulars, the conclusion arrived at by the learned justice, and the reason he assigns for the same in his opinion, are satisfactory. So much of the order as directed that the answers and certain particulars be made definite and certain, seems to us to satisfy this branch of the plaintiff’s motion.

It follows, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., concurs.