
    Elizabeth H. Carleton, Plaintiff, v. Lee Gwynn Lawrence et al., Defendants.
    (Supreme Court, New York Special Term,
    September, 1912.)
    Pleading—'answer — motion to strike out answer as sham—foreclosure.
    An answer in an action to foreclose a mortgage on real estate which denies, in the words of the complaint, that defendant had failed to comply with the conditions of the mortgage by omitting to pay the principal sum, or that the sum claimed, or any sum whatever, remains due and unpaid, may not be stricken out as sham on the ground that it involves a negative pregnant.
    Where a separate defense, in pleading an agreement for the extension of the mortgage debt, clearly sets up facts which cannot be determined on affidavits, a motion to strike, out the answer as sham will be denied, as whether there was an extension of the mortgage is a question of fact.
    Motion to strike out defendant’s answer as sham.
    Eduard Coffin, for plaintiff.
    George W. Carr, for defendant Lee Gwynn Lawrence.
   Delany, J.

This is a motion to strike out the defendant Lawrence’s answer as sham. The plaintiff brings the action to foreclose a mortgage on the property of the defendant, claiming that the principal sum is due and unpaid. This the defendant denies, and in denying uses the language employed by the plaintiff, in expressing the alleged default. The defendant denies in very words as follows: “ Defendant denies that this defendant has failed to comply with the conditions of the said bond and mortgage by omitting to pay the sum of $-20,000, the principal, which became due and payable on the 15th day of December, 1911; defendant denies that the said $20,000, the principal, remains due and unpaid, and defendant denies that there is now justly due and payable to the plaintiff in this action upon said bond and mortgage the said principal sum of $20,000, with interest thereoja at the rate of five per cent per annum from December 15, 1911, or any sum whatever for either principal or interest.” Plaintiff claims that this is not a sufficient denial, and because of the language employed is a negative pregnant, and therefore does not set forth a meritorious defense. The mere employment of the very words of an allegation in a pleading with the added denial so expressed does not in every case and necessarily involve a negative pregnant, and in this case, the language sets forth an unqualified denial of the allegation in the complaint alleging the defendant’s default. It is not, therefore, justly susceptible to the construction given it by the plaintiff, and as a denial is good. Donovan v. Main, 74 App. Div. 44. The defendant sets up a separate defense which embodies the contention underlying- the controversy. By mesne assignments the plaintiff came into the ownership of this mortgage, and at about the time the principal sum was about to become due there was correspondence between the defendant and the agent of the plaintiff concerning the payment of the principal or the renewal of the mortgage. Plaintiff contends that as a result of this correspondence she caused to be sent to the defendant an agreement to extend the mortgage for three years which had been executed by her, and sent to the defendant through the mails accompanied by a letter in which the defendant was asked to complete the execution of the instrument and return a duly executed copy to the plaintiff, with the understanding, as plaintiff claims, which was contained in the letter transmitting the agreement, that it was to be delivered only on condition that the defendant pay $100 mortgage tax and the interest about to become due. The defendant Lawrence admitted receiving the agreement in duplicate already executed by plaintiff, but denies receiving any letter imposing any condition upon its delivery. Defendant says she executed the agreement and sent plaintiff’s agent a duplicate, which was then executed by both parties, and with it her check, which was accepted, for the interest about to become due, and that she did not hear anything about the delivery of the agreement being conditional for some time after the occurrence. The affidavits on both sides contain a narration of the circumstances with reference to many episodes and incidents and some statements of the subsequent conduct of the parties calculated to bear on the probabilities of the one disputed fact in the case, i. e., whether the letter transmitting the agreement in question accompanied the papers. There is clearly here a question of fact, and as the action is for the principal sum the question is whether or not the time of the mortgage was extended three years. Independent of the consideration as to the sufficiency of the denial of the material fact of the complaint, heretofore referred to, this separate defense clearly sets up a state of facts which cannot be determined by the court considering the question merely on affidavits. And while the affidavits may be used for the purpose of illuminating the pleadings on a motion to strike out an answer as sham, they could not he availed of to sustain the granting of such a motion unless they established beyond contest the falsehood of the answer. In this case they certainly cannot be said to establish' any such fact.

Motion denied, with ten dollars costs.  