Opinion
May 8, 1939.
Order denying motion to treat an answer as a nullity on the ground that the same is sham and frivolous, and to strike out affirmative defenses as insufficient, modified by granting the motion to strike out the first and second affirmative defenses and, as so modified, affirmed without costs. The answer, by its denials, raises an issue as to whether or nor the assessment in question arose out of the same proceeding as that in which the assessment in Matter of Seidl v. Zauner ( 247 N.Y. 17) was declared void. We are unable to hold on the face of the pleadings alone that the denial is sham. The denial may be shown to be such upon the trial, or by virtue of a motion invoking the proper rule of Civil Practice. As to the separate defenses, our affirmance of the dismissal of the action for declaratory judgment was limited to a refusal to interfere with the discretion of Special Term in dismissing an action seeking a declaration that an assessment was void which, according to the allegations of the complaint in that action, had already been declared void. The defense would not constitute a bar to the present action to remove a cloud on title, particularly in the light of the fact that it is asserted, although not expressly alleged in the complaint, that the Charter of the City of New Rochelle was amended after the dismissal of the action for declaratory judgment, so as to provide that a transfer of tax lien be presumed to be regular and valid. ( Scott v. Onderdonk, 14 N.Y. 9, 14.) Lazansky, P.J., Hagarty, Carswell, Adel and Close, JJ., concur.