
    The Mutual Life Insurance Company of New York, Respondent, v. Solomon B. Toplitz and Others, Appellants.
    
      Pleading — a denial on information and belief of the payment by a mortgagee of taxes and assessments is good — an allegation that another action is pending in, which the sa/me cause of action is alleged as a counterclaim is not a sham defense.
    Where the complaint in an action brought to foreclose a mortgage, sets up a claim for a sum of money paid by the mortgagee" for taxes and assessments, levied against the mortgaged premises, an answer denying knowledge or information sufficient to form a belief concerning the paragraphs of the complaint relating to the payment of the taxes and assessments is sufficient to put such allegations in issue and to require the plaintiff to prove upon the trial the actual payment of such taxes and assessments.
    An allegation in an answer that another action is pending in the Supreme' Court of the State of New York, in which the plaintiff in the present action is a ■ defendant, and has set up as a counterclaim therein the same cause of action set up in the complaint in the present action, should not" be stricken out as a-sham defense.
    Appeal by the defendants, Solomon B. Toplitz and others, 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 26th day of November, 1900, striking out as sham the 3d paragraph of the answer interposed by the defendant, and overruling the remainder of said answer as frivolous.
    
      Henry Brill, for the appellants.
    
      Herbert Barry, for the respondent.
   Ingraham, J.:

The action was brought to foreclose a mortgage, The complaint alleged that the mortgage contained a provision that, in default of the payment by the mortgagor of all taxes, charges and assessments which might be imposed by law upon the said mortgaged premises, it should be lawful for the mortgagees to pay the amount of such tax, charge or assessment, the amount so paid, with the interest thereon, to be a lien on the said premises and to be secured by the said mortgage; and that in pursuance of this authority conferred on the mortgagees the plaintiff paid certain taxes and assessments and water rates levied and assessed against the said mortgaged premises, aggregating $786, which sum had not been paid by the mortgagor, and the plaintiff demanded judgment that any sum which had been paid for taxes and assessments on the mortgaged premises should be recovered in this action.

The defendants interposed an answer, by the 2d paragraph of which they deny knowledge or information sufficient to form a belief as to paragraphs 9 and 10 of the complaint, which contained the allegation as to payment of the taxes and assessments upon the property, and by the 3d paragraph of the answer the defendants allege that at the commencement of the action there was another action pending in the Supreme Court in which the plaintiff in this action was one of the defendants, and had set up the same cause of action alleged in the complaint as a counterclaim against these, defendants, who were the plaintiffs in said action, and demanded an affirmative judgment thereon. The order appealed from struck out as sham the 3d paragraph of the answer and overruled the remainder of the said answer as frivolous, and directed judgment for the plaintiff as demanded in the complaint. I do hot think that filie ■defense alleged in the 3d paragraph of the answer was sham. Upon the papers submitted it appears that that allegation was true, as there was such an action pending, and if it is conceded that such a •defense, without an allegation that judgment had been entered in the action specified, would not be a good defense to this action, it was not sham and should not have been stricken out.

FTor do we think that the plaintiff was entitled to judgment on the answer as frivolous. The defendants deny knowledge or information sufficient to form a belief as to the 9th and 10th subdivisions of the complaint, which allege the payment by the plaintiff of the taxes upon the property. Such a denial plainly put at issue the allegations of the complaint as to the payment of such taxes and assessments, and before the plaintiff could recover for the payment of such taxes and assessments it was required to prove upon the trial the actual payment thereof. The rule as stated in Sidenberg v. Ely (90 N. Y. 257), that a mortgagee could pay the taxes and recover for them as part of the mortgage debt, does not dispense with the necessity of an allegation of such payment in the complaint with a demand that the amount so paid be added to the amount secured by the me artgage. Without such an allegation and demand for judgment under the provision of the Code that a judgment where no answer is interposed cannot he more favorable to. the plaintiff than that demanded in complaint (Code Civ. Proc. § 1207)* the plaintiff could only recover the amount due on the bond, to secure which the mortgage-was given. By subdivision 1 of section 500 of the Code it is provided that the answer of the defendant must contain a general or specific, denial of each material allegation of the complaint, controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.” This allegation of the answer is clearly sufficient within this provision of the Code. It denies . knowledge or information sufficient to form a belief, as to paragraphs 9 and 10 of the complaint; and as to these allegations of the corn-.plaint the general issue was raised, and in determining that issue the defendants had the right to a trial.

Since the case of Thompson v. Erie. R. R. Co. (45 N. Y 468) it has been settled where an answer contained a general denial of several allegations of the complaint, that as to those allegations, the answer is as ‘fully a general denial as is an answer denying the whole complaint; that the allegations denied must be met by proof, and such proof must, in such a case, as well as in that of a general denial of the whole complaint, be the common-law proof which the defendant has the constitutional right to require; and this rule is applicable, whether the complaint sets up a claim formerly cognizable by a court of law, or one "entertained only in a court of equity.

It follóws that the plaintiff was improperly awarded judgment at"the Special Term, and the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for judgment denied, with ten. dollars costs.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ.„ concurred.

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