
    William Selover, Resp't, v. Absalom Lockwood et al., App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Pleading—Demübber.
    In a foreclosure action, defendant demurred to the complaint on' the ground that it did not state facts sufficient to constitute a cause of action, in that it contained no allegation of an existing debt, or that any obligation to pay existed, and that it affirmatively showed that no debt existed, but that the mortgage was given by way of a testamentary gift or provision for the mortgagor’s wife. Plaintiff moved for judgment on the ground that the demurrer was frivolous, which was granted. Held, error; that there was sufficient question presented by the demurrer to require the justice to refuse to dispose of it in a summary manner.
    Appeal by the defendants, Absalom Lockwood, Mary Lockwood, his wife, Harriet Hoyt and Esther Bedient, from an interlocutory judgment entered "in Cayuga county, August 13, 1892, ■overruling their demurrer to the plaintiff’s complaint as frivolous, and directing j udgment to be entered for the plaintiff thereon for the relief demanded in the complaint, but with leave to the defendants to answer on terms.
    James R. Cox, for app’lts;
    
      James Lyon, for resp’t.
   Macomber, J.

The notice of motion given to the appellants was, that application for judgment in accordance with the prayer ■of the complaint would be made before a justice of the supreme court at chambers, upon the ground that the demurrer interposed by them was frivolous. Subsequently, an order was made, apparently a court order, directing judgment tó be entered for the plaintiff, upon the demurrer, for the relief demanded in the complaint, with ten dollars costs of the motion, upon the ground that the demurrer was frivolous. This was followed by the ■entry of an interlocutory judgment as upon a trial at special term of issues of law arising on a demurrer. Leave, however, was granted to the appellants to serve an.answer within twenty days from the date of the order upon paying to plaintiff’s attorney ten dollars costs of motion and ten dollars costs for leave to answer.

The learned counsel for the respondent has filed one brief in whibh he takes the position that this order, from which the appeal by the appellants was taken, is not appealable because it was not rendered at special term or trial term or a circuit of the supreme court, and he contends that there is no authority for entering such an order as was done in this instance.

The practice pursued was not the usual one in motions of this description; but we think the respondent is estopped to allege that it was irregular, for it was attributable to himself, in whose behalf the order from which the appeal was taken was entered. We must, therefore, consider the case upon the merits as they were developed upon the hearing at chambers.

The action was brought for the foreclosure of a mortgage upon, lands in the town of Sennett, N. Y. The mortgage was executed by one Horace W. Lockwood, now deceased, in the sum of $2,400 and interest, and payable to Margaret Selover, her heirs and assigns, and dated April 1) 1864. The plaintiff alleged the assignment of the mortgage by the mortgagee to one Gertrude Lockwood, on the 5th day of July, 1866, and the record of such assignment; also, the assignment by Gertrude Lockwood to the plaintiff, William Selover, on the 30th day of May, 1892, together with an allegation that the plaintiff is the owner thereof. The complaint further sets forth the death of the mortgagor on the 13th day of April, 1892, intestate; that he left surviving him a widow, the said Gertrude Lockwood, and certain heirs-at-law, the appellants in this case; the marriage of the defendant, Gertrude Lockwood, to the said Horace W. Lockwood, with the allegation that inasmuch as she, his wife, did not join in the execution of the mortgage, she is entitled to her light of dower to the premises, prior and superior to the mortgage; that Horace W. Lockwood, in his lifetime, failed to comply with the conditions of the mortgage, by making payment upon the principal sum of $2,400, which he had the option to pay upon giving thirty days notice, and that his heirs had wholly failed to comply with the conditions of the mortgage to pay such principal and interest from April, 1864, amounting in all to $6,437.20; also, that no proceedings at law have been had for a recovery of the debt.

The demurrer was interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action. It was based upon the proposition that the complaint contained no allegation of an existing debt, and that it did not appear that any obligation to pay existed, and also that not only was there an omission to aver the existence of a debt, but that it affirmatively appeared by the complaint that no debt existed, but that, on the contrary, the mortgage was given by way of a testamentary gift or provision for the mortgagor’s wife. Many cases are cited to support this contention.

It is argued in behalf of the respondent, that the seal to the mortgage sufficiently implies a consideration, and that the amount of security being ascertained by the terms of the instrument itself, the land covered by the mortgage may be charged with the payment of this sum.

The mortgage contained this provision as set forth in the complaint : “ This grant is intended as a security for the payment of two thousand four hundred dollars, to become due and payable at the option of the parties hereto (meaning the mortgagor and mortgagee), their or either of their assigns, by giving the other party thirty days notice; nevertheless, if such sum or principal is not paid during the lifetime of the party of the first part, and provided this instrument (meaning said mortgage) shall be assigned to and be held and owned by Gertrude Lockwood; also provided the said Gertrude Lockwood shall survive said party of the first part, then at the death of said party of the first part (meaning the mortgagor), said principal sum shall become due and payable to the party of the second part (meaning the mortgagee), her heirs or assigns, without notice as is above mentioned, together with interest from the date of this instrument (meaning the date of said mortgage), and that said mortgage-shall be void if such payment be made as therein specified.”

The complaint also averred, that said mortgage contained the-further provision, that if the said mortgagor should not pay the moneys thereby secured, according to the terms thereof, then the-said Margaret Selover, her executors, administrators or assigns, were empowered to sell the said mortgaged premises in due form of law, and out of all the moneys arising from such sale, tor pay the said sum of money and interest in and by said mortgage secured to be paid, with the costs and expenses of all proceedings-thereupon ; the surplus, if any there should be, to be returned to-said mortgagor, his heirs or assigns.

In behalf of the appellants, it is argued, that this instrument, appears to be an inchoate and incomplete attempt to make a post-mortem gift in the nature of a testamentary bequest, charged upon the lands, and which is not permitted to be done by the-statute of wills. Upon this proposition are cited: Morrell v. Dickey, 1 Johns. Ch., 153; Harris v. Clark, 3 N. Y., 93; Phelps v. Pond, 23 id., 76; Worth v. Case, 42 id., 367, and many other authorities and text writers.

The learned counsel for the respondent concedes that the instrument appears to be of the nature of a testamentary provision for his wife in lieu of a will.

Both counsel, therefore, appear as contending upon the one assumption, namely: that there was no debt in existence at the time-of the execution of the mortgage; but the one argues that the mortgage cannot be enforced upon that ground, and the other that-it may be enforced as being in the nature of a testamentary gift-to the mortgagee.

We purposely refrain from passing upon this question at the present time, for, in our judgment, the practice has been mistaken by the counsel for the plaintiff. The very statement of the question involved shows that it is one of much interest and moment, and a demurrer so presenting it is a pleading that should be examined, and the case made by it tried in the usual way of trying-demurrers.

Section 537 of the Code"of Civil Procedure permits an application to be made in a summary manner to a judge or court for a judgment upon a frivolous pleading, and authorizes a judgment to be given accordingly. This section does not contemplate the entertaining of a motion for a judgment upon this grourfd when the pleading interposed presents any question for trial; it is only where the faulty pleading is an obstruction that an application-may be made. The section further provides:

“ If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not-prejudice any of the subsequent proceedings of either party.”

This clause of the section shows that the case contemplated by this provision is only one where manifestly and clearly the pleading presents no question for the consideration of the court, but-appears to have been put in in bad faith, and upon a mere pretense.

Without, therefore, expressing an opinion upon the merits of' this question as they shall appear when the same shall have been brought on for trial in the usual way, we think that there was sufficient question presented by the demurrer to the complaint as to require the learned justice at chambers to refuse to dispose of it in the summary way contemplated by this section of the Code.

It follows that the order appealed from should be reversed.

Interlocutory judgment appealed from reversed, with costs.

Dwight, P. J., and Lewis, J., concur.  