
    KREITZ against FROST.
    
      Supreme Court, First District ; Special Term,
    June, 1868.
    Motion foe Judgment.—Allegations of Mistake.— Denial of Motion.
    The 'fact that a plaintiff moves for a judgment, instead of moving to strike out a false answer, is no objection to granting the former, as the right to judgment follows the striking out of a false answer.
    Where a plaintiff avers a mistake on his part in taking a conveyance of property which he insists is wrongly described in the instrument of conveyance, and asks to have the defendant adjudged to correct the mistake in the conveyance, and the defendant, in his answer, says that he made a mistake in the contract of sale, and that the property he intended to sell was the one described in the conveyance, and asks leave to have the contract reformed;—his omission to allege that there was a mistake also on the part of the plaintiff, in the contract, renders the piatter setup in the answer irrelevant, and the answer constitutes no defense.
    The denial of a motion to strike out an answer as frivolous does not prevent a motion to strike it out as sham.
    Motion for a judgment.
    The defendant owned two houses contiguous to each other, on the same street, and numbered 203 and 205. The plaintiff alleged that he made a contract to purchase from defendant No. 205; that when the defendant delivered to the plaintiff’s attorney the papers and abstract of title, he substituted by mistake or otherwise the papers appertaining to No. 203, and the title to the latter premises was passed ; that upon an assessment of taxes the error was discovered, and a demand made for a conveyance of the premises agreed upon, and the plaintiff now sues to have the defendant adjudged to correct the mistake in the conveyance. The defendant’s answer alleged that he intended to sell No. 203, and not No. 205 ; that the title was rightly passed; and he asked leave to have the contract reformed.
    Upon the premises No. 203 a higher ground rent was payable than upon the premises No. 205. Certain letters written by the defendant, which were put in evidence, tended to show that the defendant had expressed his willingness to correct his mistake, and referred to his attorney as authorized to do so. It was also proved that the plaintiff was allowed to take possession of the premises he claimed to have bought, and occupied them ever since, without objection on the part of the defendant.
    
      H. H. Morange, for the plaintiff.
    f. —I. Thedefendant’s objection to notice of motion cannot avail him. The right to judgment follows as a matter of course if the answer be stricken out (People v. McCumber, 18 N. Y., 315).
    II. The motion is for judgment on account of the answer being sham and false. The essential element of a sham answer is its falsity (Nichols v. Jones, 6 How. Pr., 257). The words “sham” and “false” are synonymous (People v. McCumber, supra).
    
    III. The defendant does not deny that the plaintiff has been for nearly a year, and is now, in the occupancy of the house and lot agreed to be sold to him. If lie were not, why does he permit him to remain, or why does he not attempt to collect rent from him, and why does he receive rent from the house adjacent ?
    IV. The letters show that the defendant never pretended that the plaintiff was in the wrong house, until he discovered that he could economize $30 a year ground rent, and then, willing to take advantage of his own wrong, he puts in this answer in order to coerce a settlement by delay.
    V. The defendant cannot have the contract reformed. It has been carried out by him without objection, and he put the plaintiff in possession of the identical house purchased.
    YI. No issue is presented by the answer. It is evasive. To permit such a pretended defense to stand, would "be "blocking up the administration of justice, and give a helping hand to parties who endeavor to take unjust advantage of their neighbors.
    YII. There is no mistake as to the identity of the house. The only error which the defendant now perceives, is that he has kept the house paying the highest sum for ground rent. He knew that at the time of sale, and it can afford him no ground for a rescinding of the sale, or canceling the contract.
    YII. The motion for judgment should be granted.
    
      A. Prentice, for the defendant.
   Ingraham, J.

—I see no objection to granting this motion in the fact that the plaintiff asks j udgment instead of striking out the answer. The right to judgment follows striking out a sham answer. In People v. McCumber (18 N. Y., 315), the notice of motion was to strike out and to render judgment. This motion was granted, and the order was affirmed. Although it is better to follow the provisions of the Code, still I do not think it necessary to deny the motion on that ground. Upon the merits I entertain more doubt. An answer is sham, if it is false. In People v. McCumber, the judge says: “ The defense may be sham for the sole reason that it is false. So it may be sham if it does not set up a defense.” Do either of these rules apply to this answer ?

The plaintiff avers a mistake on his part in taking an assignment of a lease different from the one intended, and asks to have the defendant adjudged to correct that mistake. The defendant says he made a mistake in the contract of sale, and that the lease he intended to sell was the one he did assign, and asks to have the contract reformed.

There is nothing to show this to be clearly false, although there are some matters in evidence which throw much doubt on the truth of it. Cardwell’s affidavit says that the plaintiff understood he was to pay and did pay $241.87, which was' the highest ground rent. The plaintiff was allowed to take possession of the house he claims to have bought, and has occupied it ever since without objection from the defendant until plaintiff discovered his mistake. In the letter of January 28, defendant expressed his willingness to correct the error,- and refers to Mr. Prentice, his counsel, as authorized to do so. These matters throw great doubt on the bonafides of the answer.

The answer does not show any defense. A mistake by the defendant in the contract, would not entitle him to have it reformed, especially when he has subsequently carried out the contract as made, and suffered the party to take possession of the property so sold without objection. The defect in the answer is that it does not show the plaintiff to have made any mistake in the contract. Without such an allegation, the whole matter set up in the answer is irrelevant, and constitutes no defense. The denial of the motion to strike out the answer as frivolous does not prevent a motion to strike it out as sham.

In this case I doubt very much the truth of the answer ; the facts set up constitute no defense; there is no issue made by it requiring a trial; and there is no good reason for keeping it on the record.

Under all the circumstances, I think the motion should be granted.  