
    SUPREME COURT.
    The Excelsior Savings Bank, respondent, agt. Samuel Campbell and others, appellants. Same agt. Same.
    
      General Term, First Department,
    
    
      October 30, 1874.
    
      Answers held to he frivolous.
    
    Where the defendants, in then' answer to an action to foreclose a mortgage for non-payment of interest, denied that the defendants were in default in the payment of $280, &c., which became due and payable on the 27th day of September, 1873, and nowhere averred that the interest had been paid, nor denied that the plaintiff was entitled to the amount claimed to be due, nor was any material fact put in issue by the answers, held, that the answers were frivolous.
    Appeal from orders overruling answers as frivolous.
    
      W. S. Palmer, for appellants.
    
      F. F. Van Derveer, for respondents.
   Lawrence, J.

— I think that the. answers in these cases were properly held to be frivolous by the court at special term.

The answers do not allege that the interest was paid by the defendants, nor do they deny that the defendants have failed to comply with the conditions of the bonds by omitting to pay the interest. The denial is that the defendants were in default in the payment of $280, &c., which became due and payable on the 27th day of September, 1873. It is nowhere averred that the interest has been paid, nor' is any fact pleaded which tends in any way to show that the amount claimed is not due to the plaintiff, nor is it denied that the plaintiff is entitled to the amount claimed to be due. In fact, no material fact is put in- issue by the answers; they simply deny that the defendants were in default, which is a conclusion of law. The case of Youngs agt. Kent (46 N. Y., p. 672) cited by the appellants’ counsel does not, as I understand it, aid the appellants.

In this case the answer was held to deny that the quantity of sugar delivered was the same as stated in the complaint, This was a material allegation which the plaintiff was bound to prove; and it is quite evident, from the opinion delivered by the court, that the denial in question alone prevented the the affirmance of the order for judgment which had been granted by the court below.

The orders of the special term are therefore affirmed, with ten dollars costs, in each case.

Davis, P. J., and Daniels, J., concurred.  