
    JEROME B. FELLOWS, Plaintiff and Respondent v. CATHARINE MULLER and GEORGE BISCHER, Defendants and Appellants.
    Under the former system of pleading, the general issue could not be stricken out as false or sham.
    “ Courts have never set aside the general issue ” (Brewster®. Bostwick, 6 Oow. 37; Broome County Bank®. Lewis, 18 Wend. 566).
    Under the Code, the answer may contain a general or specific denial of each material allegation of the complaint that is controverted ( Code, § 149). And a verified answer containing such a denial can not be stricken out as sham (Winnie ®. Sickles, 9 Bow. Pr. 217 ; Wayland ®. Tyson, 45 N. T. 281; Thompson ®. Erie R. R. Co., 45 N. T. 468).
    Special pleas under the former system might be stricken out as false and sham (Stewart ®. Hotchkiss, 2 Oow. 634; Brewster ®. Bostwick, 6 Id. 37), and in like manner, under the Code, and the present rules of practice affirmative defenses in an answer, or an answer containing affirmative defenses, without any general or special denial, may be so treated (Code, § 152).
    Although section 152 of the Code states that “sham and irrelevant answers and defenses maybe stricken out,” a general or specific denial of material allegations of the complaint may not be so disposed of.
    Before Van Vorst and Speir, JJ.
    
      Decided October 31, 1874.
    The admission in the answer of the truth of specific allegations of a complaint, and a general denial of every other allegation, puts in issue sucl^ other allegations (Allis v. Leonard, 46 2F. 7. 688).
    The affirmative defense set up in the answer, in the case at bar, of the payment of the interest claimed to be due in the complaint appearing by the affidavits to be false and sham, should be stricken out, but the allegations in the answer that form a general or specific denial of material allegations of the complaint can not be stricken out as false or sham.
    Appeal from an order of the special term.
    This is an action to foreclose a mortgage for the alleged non-payment of six months’ interest, which became due on May 3, 1874.
    As alleged and claimed in the answer, the interest was paid on May 6, 1874, by the defendant, three days after it became due.
    This action was commenced on July 16, thereafter, nearly two and a half months after the interest had been paid, as claimed.
    The defendants answered, denying that any interest was due, and setting up payment in full of said interest on May 6, 1874, and denying any indebtedness of principal or interest, or of any part thereof!, also a general denial, and it was duly verified.
    The plaintiff moved the court, at special term, on affidavits, to strike out the answer as sham and false, which was granted on September 4,1874, and an order striking out the entire answer was entered, and tiled in the office of the clerk.
    The defendant appeals from that order to the general term.
    
      
      M. H. Topping, for appellants.
    
      Hatch & Van Allen, for respondent.
    
      H. F. Hatch, of counsel.
   By the Court.—Van Vorst, J.

Under the former system of pleading, a plea of the general issue could not be stricken out as sham. The defendant had the right by such plea, to put in issue for trial in the ordinary way in which issues of fact are tried, all the material allegations of the declaration. “ Courts have never set aside the general issue” (Brewster v. Bostwick, 6 Cow. 37; Broome County Bank v. Lewis, 18 Wend. 566).

Under the Code, the defendants’ answer may contain a general or specific denial of each material allegation of the complaint controverted by hita (Code. § 149).

And-when an answer contains such a denial, and is verified in the manner prescribed by law, it can not be stricken out as sham (Winnie v. Sickles, 9 How. Pr. 217; Wayland v. Tysen, 45 N. Y. 281; Thompson v. Erie R. R. Co., Id. 468).

But as special pleas under the former system might be stricken out as false and sham, so affirmative defenses in an answer, or an answer containing affirmative defenses without a general or specific denial, may be so treated under the Code on similar grounds (Stewart et al. v. Hotchkiss, 2 Cow. 634; Brewster v. Bostwick, supra; Code, § 152).

But so reluctant was the court to strike out a plea setting up new matter by way of a defense, or a, special plea when properly pleaded, that it would be allowed to stand, upon a very slight suggestion of its truth (Stewart v. Hotchkiss, supra).

Although the language of section 152, states that “sham and irrelevant answers and defenses may be stricken out,” a general or specific denial of material allegations of the complaint may not be so disposed of.

The answer of the defendent, which was stricken out by the judge, at special term, as false and sham, concludes by stating,- “that except as hereinbefore admitted or denied, this defendant has no knowledge or information sufficient to form a belief as to whether or not the matters set forth in said complaint are true; and she therefore denies the same, and each and every allegation thereof, and she demands that the complaint may be dismissed.”

In the commencement of the answer, the defendant admits the execution by her of the bond and mortgage sought to be foreclosed. There is no other clear and unqualified admission in the answer.

The admission of the execution of the bond and mortgage, concedes that the same, with all its terms and conditions, is properly set forth in the complaint. But every other allegation is denied. While, therefore, the answer admits the allegation in the complaint “ that in and by said mortgage, it was provided that in case the party of the second part (the mortgagee) should effect insurance on said premises, the premiuins should be due and secured by said mortgage,” it must be held to deny the allegation in the complaint that “ such insurance was effected by said plaintiff,” and paid for by him. This is a material allegation of the complaint, and is accompanied by a claim on the plaintiff’s part that in addition to the principal sum and interest secured by the mortgage, the premium for insurance is due thereon. Under such an issue, the plaintiff on the trial would be obliged to prove the payment by himself of such insurance premiums.

With such a material issue formed, it is unnecessary to inquire whether or not other issues are not raised by« the defendants’ denial: such as the assignment of the bond and mortgage to the plaintiff, as alleged in the complaint,- and which is claimed to be indirectly admitted, and whether or not the allegation of the defendants’ default, by which plaintiff claims the whole amount of the mortgage to be due presently, is not also put in issue.

The admission, by a defendant in his answer, of specific portions of a complaint, accompanied by a general denial of each and every other allegation, puts in issue such other allegations (Allis v. Leonard, 46 N. Y. 688). We are, however, satisfied that the affirmative defense, set up in the answer, of the payment of the interest on the bond and mortgage, is false, and that this defense could have been stricken out, on the motion, as sham. The answer does not allege that this interest was paid to the plaintiff, nor does it state to whom or when paid. The affidavits used on the motion show conclusively that the interest has not been paid,- but that the money for such payment has been placed by the defendant in the hands of her counsel who argues this appeal, and that he still holds the same unapplied to such purpose, and that the receipt which defendant claims to hold for the payment of such interest is signed by her own counsel, acknowledging the receipt by him of such moneys for such purpose. This defense is clearly sham, and should not be allowed to stand. The affidavits used on the motion, on the defendant’s behalf, clearly Show that these moneys have never been paid to the mortgagee, or plaintiff, or any claimant whomsoever.

The order appealed from, strikes out the entire answer. As it contained a denial of material allegations of the complaint, this, under the authorities above cited, could not be done.

But as the notice of motion, on the plaintiff ’ s part, asked not only for the relief granted, but also for such other or further order as might be just, and as the defendant appeals from each and every part of the order, we can, upon this appeal, make such order as should have been granted by the judge below upon the pleadings and affidavits.

The order appealed from should be so far modified as to strike out the second defense in the answer, as sham, and that except as so modified the order appealed from be reversed, and that neither party have costs of the appeal as against the other.

Spetr, J., concurred.  