
    Frank S. Anderson and George L. Cooke, Respondents, v. Archibald I. McNeely and Charles Newton, Defendants, Impleaded with Julia A. McNeely, Appellant.
    Third Department,
    June 25, 1907.
    Foreclosure) — dower — answer of wife not joining in mortgage stricken out.
    " Although a wife who has not joined in her husband’s mortgage is made a party ■' defendant on foreclosure, it is not necessary for hér tó set up her 'dower rights by answer.v Such answer is frivolous and will be stricken out:
    The inchoate dower of a wife 'who did not . join in a mortgage is not affected by ' foreclosure.
    
      Appeal by the defendant, Julia A. McKeely, from an order of the Oounty Court of Sullivan county, entered in the office of the cleric of said county on the 8th day of April, 1907, directing a judgment of foreclosure in favor of the plaintiffs upon the ground that the answer of the defendant Julia A. McKeely is frivolous.
    
      John D. Lyons, for the appellant.
    
      Frank S. Anderson and George L. Cooke, respondents, in person.
    Order affirmed, witli ten dollars costs and disbursements, on the • opinion of Boosa, County Judge.
    All concurred, except Kellogg, J., not voting.
    The following is the opinion of the county judge:
   Roosa, J.:

This is a motion to strike out the answer as frivolous. The action is brought to foreclose a mortgage made and executed by Archibald I. McKeely to the plaintiffs. •

Julia A. McKeely, the wife of Archibald I. McKeely, did not. sign the mortgage. The motion of - the plaintiffs is for judgment upon the pleadings, upon the ground that the answer does not deny any of the allegations of the complaint, nor contain any defense valid at law, and is, therefore, frivolous.

The application .is made for judgment - under section 537 of the Code of Civil Procedure. A frivolous answer denies no material averment in' the complaint and ■ sets up no defense.' (Soper v. St. Regis Paper Co., 76 App. Div. 409; Hull v. Smith, 8 How. Pr. 149.)

The only defense set up by the defendant Julia A. McKeely is that she lias an inchoate right-of dower in and to the premises described in the complaint. Ko action taken by these plain tiffs could debar her of her inchoate right of dower in the real estate of her husband, she not having signed the mortgage. Any dower right she may have is paramount to the mortgage. She was made a party because she had “ some interest in or lien upon the said mortgaged premises * * * which interest or lien, if any, has accrued subsequently to the lien of the said mortgage,” and any interest she may have had in the real estate covered by the-mortgage and prior to the execution of the mortgage^ cannot in any way be interfered with in this proceeding. Ho matter what action may have been taken by .the plaintiffs'under the. complaint 'in this action; no matter, what demand they may make in their prayer for equitable relief, they cannot affect any rights Julia A- MeWeely may have- had in'the property prior to the execution of this mortgage, she not having ■signed the instrument.. (Lewis v. Smith, 9 N. Y. 502.)

Where a person claiming a lien .or title prior to the mortgage is made a party, it is not ■ necessary to set up his rights by answér. This applies to. the wife ,of the mortgagor’, who did not sign the mortgage.-. (Thomas Mort. [2d ed.]-§ 844.)

In' the' case of Merchants' Bank v. Thomson (55 N. Y. 7)," Judge Folder, in the opinion of the court, says: “When Thomson executed- the mortgage which was foreclosed, he was married. The mortgage was not given' for-the purchase monpy, nor did his- ' wife join in executing it. • ' Hence it did not affect' her inchoate right of d.ower in the premises. .Though she was; made a party to the. action of fforeclosure she was not-barred of that right by the judgment . therein. yThere is. no .allegation in the complaint, that the mortgage' was prior, or superior or hostile to. her right or interest. There'is the general clause in the judgment that the defendants be-foreclosed .of. all right in the premises. But her inchoate right of . dower was not in issue, and' there could be no- valid adjudication "adverse to it. Moreover, .'a foreclosure action is not the proper mo.de to litigate rights' claimed in priority -or hostility to the mortgage. . A'judgment passing upon them is erroneous. . A person claiming dówer by title paramount to the mortgage cannot be brought into court in such a suit to contest’ the validity of her dower.’’

In Nelson v. Brown (144 N. Y. 388).the court sayS: “ The-proceedings in the foreclosure action were ineffectual to determine the question of the plaintiff’s right to dower in the mortgaged lands. By failing to join with her husband in the execution ,of the -mortgage . her inchoate dower right remained'unaffected, and superior, to .the1' mortgage. When, after her husband’s death, the action of foré- ■ closure.was brought, though she was made a party defendant," the complaint tendered no issue upon her right- to doweif ■ The general ' allegation, to. the-effect that the defendant had,or claimed to have, some .interest in the mortgaged premises^,-which had accrued'subsequently to the lien of the mortgage, could have no reference or relation to her dower right, if it existed, for it would have been a right paramount to that of the mortgagee.” (See Fern v. Osterhout, 11 App. Div. 319.)

I have carefully examined all the-authorities cited in the briefs submitted, and am satisfied that the motion to strike out the answer x should be granted.'

Motion granted, with ten dollars costs.  