
    Clara E. Bidwell, Respondent, v. Maurice J. Sullivan, Appellant, Impleaded with Francis A. Clark and Others, Defendants.
    
      Mortgage foreclosure — an answer denying the complaint on information and belief puis in issue the execution and, delivery of the mortgage—when such a denial is authorized.
    
    In an action brought to foreclose a mortgage, a party defendant, alleged in the complaint to have a lien subsequent to the mortgage sought to be foreclosed,
    . interposed an answer denying that he had “any knowledge or information sufficient to form a belief ” as to any of the allegations in the complaint, save that the defendant claimed a lien upon the premises therein described, and then set forth his mortgage executed and recorded subsequent to that of the plaintiff.
    
      Held, that the answer raised an issue as to whether the plaintiff’s mortgage was duly executed and delivered;
    That, although a defendant may be able by inquiry to determine whether the allegations of a complaint are true, he is not bound to do so. Unless the facts alleged in a complaint are within the personal knowledge of a defendant an answer containing a denial upon information and belief is not frivolous.
    Appeal by the defendant, Maurice J. Sullivan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of August, 1896, overruling the amended answer of said defendant as frivolous and directing judgment for the plaintiff against him.
    
      Wilson W. Hoover, for the appellant.
    
      W. W. Thompson, for the respondent.
   Rumsey, J.:

The action was brought to foreclose a mortgage and the complaint contained the usual allegations. So far as the defendant Sullivan was concerned the only allegation as to his interest was the general one that the defendants have or claim to have some interest or lien which accrued subsequently to the lien of the mortgage sought to be foreclosed. The plaintiff alleged the due recording of the mortgage to foreclose which the action was brought. The answer which was declared to be frivolous contained in the first place a denial that the defendant had any knowledge or information sufficient to form a belief as to any of the allegations in the plaintiff’s complaint contained, save and except that the defendant claimed a lien up>on the premises described therein. The answer then went on to allege the facts, showing that the defendant Maurice J. Sullivan held a mortgage upon the premises which was set out in his answer and from which it appears that the mortgage was executed and recorded subsequent to the date at which the plaintiff alleges that her mortgage was recorded. The answer was adjudged to be frivolous, apparently upon the ground that the defendant was bound to take notice of the fact of the recording of the prior mortgage, and, therefore, he was not at liberty to set up a general denial upon the ground that he had no knowledge or information sufficient to form a belief. While the record of the mortgage is undoubtedly notice of its existence to any one who has occasion to examine the record, yet it clearly is not proof of the due execution and delivery of the mortgage, although it may raise a presumption of those facts and those facts are put in issue by the denial of the defendant, in the form in which the statute permits him to make it, as much as any other facts. Although a defendant may be able by inquiry to ascertain whether the allegations of the complaint are true, he is not bound to do so, and unless such allegations are necessarily within his personal knowledge an answer in the form of this one is not frivolous. When, therefore, the defendant here interposed this answer, in the form in which the statute authorized him to put it, he had raised an issue which the law authorized him to make, and in the absence of any proof that the answer was sham, it was clearly not proper for the court to order a judgment upon it.

For these reasons the action of thé court in directing judgment was erroneous, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for judgment denied, with costs.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ„, concurred.

Order reversed, with ten dollars costs and disbursements, and motion for judgment denied; with costs.  