Fougera v. Moissen — 23 N.Y. Sup. Ct. 237

Majority

p. 237

CHARLES EDMUND FOUGERA, Respondent, v. FRANCIS J. MOISSEN, Assignee of CHARLES ZELLER, Impleaded with others, Appellants.

Headnote

Answer alleging title of mortgage in third person — not frivolous.

In an action to foreclose a mortgage, the assignee for the benefit of the creditors of the mortgagor set up in his answer, that the plaintiff had previously assigned the bond and mortgage to one Surrin, who thereupon became the owner thereof.

Held, that these facts constituted a defense, and that the answer should not be stricken out as frivolous.

Appeal from an order overruling the answer of one of the defendants herein as frivolous, and ordering judgment for the plaintiff thereon, with ten dollars costs.

F. J. Moissen, for the appellants.

No pleading can be called frivolous which sets up matter which, if true, constitutes a defense

p. 238

to the action. (Richter v. McMurray, 15 Abb., 346 ; Davis v. Potter, 4 How., 155 ; Temple v. Murray, 6 id., 331; Metropolitan Bank v. Lord, 4 Duer, 630 ; Caswell v. Bushnell, 14 Barb., 393 .) It is not the motive of putting in the answer which is in question on a motion to strike out as frivolous, but the frivolousness of the defense. If the defense is good, the motion should be denied. (Meeker v. Mitchell, 5 Abb., 455 .) The answer was not frivolous. (Smith v. Mead, 14 Abb., 262 .)

Coudert Brothers, for the respondent.

This is an action for the foreclosure of a mortgage, and a general assignee of the mortgagor for the benefit of creditors is made defendant. He interposed an answer, and set up that on or about the month of July, 1876, by an instrument in writing, duly executed under his hand and seal, the plaintiff sold, assigned and set over the bond and mortgage mentioned and described in the complaint in this action unto one John Surrin, who thereupon became the lawful owner and holder thereof. A motion was made to strike out this answer as frivolous, which was granted, and an appeal from that order brings the case here.

The fact set up constitutes a defense to this action, and if proven on the trial would prevent a judgment for the plaintiff. We think therefore the answer was not frivolous, and the order appealed from must be affirmed, with costs and disbursements.

BarNAED, P. J., concurred.

Present — BarNard, P. J., Gilbert and DyemaN, JJ.

Order affirmed, with costs and disbursements.