
    GODWIN v. LIBERTY-NASSAU BLDG. CO. et al.
    (Supreme Court, Appellate Division, First Department.
    April 7, 1911.)
    1. Pleading (§ 343)—Judgment on Pleadings—When Authobized.
    A motion for judgment, under Code Civ. Proc. § 547, authorizing motions for judgment on pleadings, cannot be granted, where the pleading contains any material issue of fact on which evidence must be taken to warrant a judgment, and on such a motion nothing but the pleadings can be considered.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1048; Dec. Dig. § 343.]
    
      2. Pleading (§ 346)—Judgment on Pleadings—When Authorized.
    Where the complaint to foreclose a second mortgage alleges the payment by the mortgagee of taxes pursuant to covenants in the mortgage, an answer by the mortgagor, denying that he has knowledge or information sufficient to form a belief as to the payment of taxes, raises an issue of fact, and is not frivolous or sham ;■ and an order, on motion for judgment, under Code Civ. Proc. § 647, to try the issues raised by the answer, with a provision for judgment without notice on the coming in of the referee’s report, is unauthorized.
    [Ed. Note.-—For other cases, see Pleading, Cent. Dig. §§ 1060-1064; Dec. Dig. § 346.]
    3. Mortgages (§ 479)—Foreclosure—Reference.
    Gen. 'Rules of Practice, rule 60, authorizing a reference in an action to foreclose a mortgage, provides for a compulsory order of reference in cases in which some of the defendants are infants or absentees, and is designed to protect such defendants, and not to facilitate plaintiff’s action.
    [Ed. Note.—For other eases, see Mortgages, Cent. Dig. ■§§ 1395-1398; Dec. Dig. § 479.]
    Appeal from Special Term, New York County.
    Action by Harold Godwin against the Liberty-Nassau Building Company and another, as trustee under a mortgage. From an interlocutory judgment, entered on the decision of a motion by plaintiff for judgment on the pleadings, defendant named appeals.
    Reversed.
    Argued before INGRAHAM, P. J., and McLAUGHRIN, SCOTT, MILLER, and DOWLING, JJ.
    Frank M. Avery, for appellant.
    Louis Dean Speir, for respondent.
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      Kor oiner cases see same topic & § number in Dec. & Ain. Digs. 1907 to date, & Rep’r Indexes
    
   SCOTT, J.

The action is to foreclose a second mortgage. The complaint, in addition to the customary allegations in such actions, also alleges that in order to protect his lien, and pursuant to special covenants in the mortgage, the plaintiff has paid certain sums for taxes on said property and for interest upon the prior mortgage, and these sums he seeks to include in the judgment of foreclosure. The defendant owner has interposed an answer, in which it denies that it has any knowledge or information sufficient to form a belief as to the allegations respecting the payment of said taxes and interest. A similar denial of the allegations as to the assignment of the mortgage to plaintiff is not insisted upon as raising an issue; but the defendant appellant does insist that the denials as to the payment of taxes and interest do raise issues which it is entitled to have tried and disposed of according to the rules and practice prescribed by law.

The order appealed from results from a motion for judgment by plaintiff under section 547, Code Civil Procedure. It is now well settled that such a motion is a mere substitute for a motion for judgment on the pleadings at the trial, that it cannot be granted when the pleadings contain any material issue of fact upon which evidence must be taken to warrant judgment, and that upon such a motion nothing but the pleadings can be considered. In effect, therefore, such a motion must always involve only a question of law; that question being- whether or not, upon the undisputed facts, the party making the motion is entitled to judgment. The present case does not answer to these requirements. While we may strongly suspect that the answer is interposed mainly for the purpose of delaying the foreclosure, and that the appellant does not expect to seriously combat the allegations of which it denies knowledge or belief, yet it is entitled to deny them, and to put plaintiff to his proof respecting them. The answer, therefore, raises issues which will require evidence to dispose of, and it cannot be said to be frivolous or sham, so that it can be ignored.

The order appealed from is not, properly speaking, an order for .judgment, but is an order of reference to try and determine the issues raised by the answer, with a further provision that, upon coming in of the referee’s report, the plaintiff, without further notice, shall be entitled to enter a final judgment of foreclosure and sale. The order appealed from is entitled an interlocutor)'- judgment, but it gains nothing by being so named, since it remains in fact and effect merely an order granting plaintiff’s motion. It is not to be doubted that, when the action is of such a nature that an interlocutory judgment must precede a final judgment, as, for instance, in an action for an accounting, and upon the pleadings the plaintiff is entitled to such an interlocutory judgment, he may move therefor upon the pleadings. But this is not such a case. When it has been tried upon the issues raised by the pleadings, the appropriate judgment to be entered is a final judgment of foreclosure and sale, and even in a case wherein an interlocutory judgment could properly be granted on motion, it would be wholly irregular to order that final judgment should be entered on the referee’s report without notice to the defendant, so that he could be heard upon the confirmation of the report. We do not consider that section 547, Code of Civil Procedure, justifies the practice that has been followed in this instance. The plaintiff, like other litigants, must be content to try his cause in due and orderly course. Nor can the order, or interlocutory judgment, as it is termed, be justified as a compulsory order of reference, under rule 60 of the general rules of practice. That rule provides for such an order only in cases in which some of the defendants are infants or absentees, and is designed for the protection of such defendants, and not to facilitate plaintiffs. Having arrived at the conclusion that the order appealed from must be reversed, it is unnecessary to consider the questions raised on the appeal as to the allowance of costs and the extra allowance.

The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion for judgment on the pleadings denied, with $10 costs. All concur.  