Opinion
February Term, 1896.
Edward F. Hassey, for the appellant.
W. Bennett Marx, for the respondent.
The action was brought to foreclose a mortgage. Biersack is the mortgagor and made the bond, and judgment for deficiency is asked against him. The mortgage was dated December 12, 1894, to secure the payment of $3,000 in installments of $300, the first of which was due March 1, 1895, and the same amount each six months thereafter. It was further agreed that the whole principal sum should become due at the option of the mortgagee on default being made in the payment of any installment, or after default in the payment of interest for thirty days.
The complaint in its seventh paragraph alleged that "the defendants have failed to comply with the condition of the said bond and mortgage by omitting to pay an installment on account of the principal, * * * amounting to the sum of $300, which became due and payable on the first day of September, 1895; that no part thereof has been paid; that the plaintiff has elected, and now elects, to deem the whole of the principal sum of the said bond and mortgage remaining unpaid to be immediately due and payable, and that there is now justly due and payable to the plaintiff on the said bond and mortgage the principal sum of $2,700, with interest from March 1, 1895."
The answer of Biersack admitted each allegation of the complaint except the seventh paragraph. He says he has no knowledge or information sufficient to form a belief as to that portion of the seventh paragraph quoted above, to and including the words "immediately due and payable," repeating the whole allegation; and he denies the remainder of the paragraph. The learned justice at Special Term held that these denials were frivolous and ordered judgment for the plaintiff. Biersack appeals.
A denial in this form is allowed by the Code, and whatever might be the weight to be attached to it upon a motion to strike it out as sham the mere form is of no importance upon that motion. ( Sheldon v. Heaton, 78 Hun, 50.) An answer can be said to be frivolous only when it is so clearly bad as to require no argument to show its character, and which would be said to be so manifestly defective as to be indicative of bad faith upon a mere inspection. ( Strong v. Sproul, 53 N.Y. 497.) Unless it appears by inspection of the pleading that it raises no issue upon any fact which the plaintiff must prove, it is not frivolous, however objectionable it may be in other respects. The plaintiff here seeks to recover the whole amount of her debt and to have a personal judgment against Biersack for it, if the mortgaged property will not upon the sale bring enough to pay it. The fact that the mortgage debt is all due is not established by merely producing the mortgage. The plaintiff must prove in addition that an installment has not been paid, and that she elects to consider it all due. Her allegation that it is so, is not that of a mere conclusion of law, but of a fact. ( Allen v. Patterson, 7 N.Y. 476.) This fact is put in issue by the answer. But it is said that part payment is an affirmative defense and cannot be shown under a denial. That is true. ( McKyring v. Bull, 16 N.Y. 297.) If the suit were brought simply to foreclose for the failure to pay the installment which fell due September first, and the relief asked were only for that installment, it might be that the defendant to raise that question would be compelled to plead that he had paid it. But that failure is alleged here not merely as a failure to pay, but as one of the facts upon which the plaintiff bases her claim that a condition subsequent has not been performed and that the whole debt has become due. Considered as such a fact, an essential one in the chain, the plaintiff must prove it. When that fact stands in such a relation to the plaintiff's case the fact of non-payment is put in issue by a denial. ( Knapp v. Roche, 94 N.Y. 329.) The answer is, therefore, not frivolous, and the motion for judgment should have been denied.
The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
VAN BRUNT, P.J., BARRETT, WILLIAMS and PATTERSON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.