Platt v. Currie

• Decision Date: 31 January 1927
• Docket Number: No. 57.,57.
• Citation: 135 A. 808
• Parties: PLATT v. CURRIE et al.
• Court: New Jersey Supreme Court

135 A. 808

PLATT

v. CURRIE et al.

No. 57.

Court of Errors and Appeals of New Jersey.

Jan. 31, 1927.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by Louis J. Piatt against Norah H. Currie and others. From an order directing that the answer filed by defendants Frank Calabrese and wife be stricken out, and the complaint be taken as confessed against them, defendants appeal. Affirmed.

Anthony R. Finelli, of Newark, for appellants.

Osborne, Cornish & Scheck, of Newark, for appellee.

HETFIELD, J. This is an appeal from an order of the Court of Chancery, directing that the answer filed by two of the defendants Frank Calabrese and Domenica Calabrese, his wife, be struck out, and the bill of complaint be taken as confessed against them. The bill filed is one to foreclose a mortgage of $3,500 upon property in Cranford, Union county, and recites that the bond and mortgage in question was made by Nora H. Currie and husband to Charlotte A. Hemphill on August 12, 1924, and was assigned to the complainant on November 26, 1924, and that the full amount of the principal and interest from August 12, 1925, is due thereon. It further states that the premises Involved were conveyed to the defendant Frank Calabrese by deed dated August 29, 1924, and made subject to two mortgages, one held by the Fidelity Union Trust Company for $7,000, and the $3,500 mortgage now under foreclosure. The bill also alleges that, when the said bond and mortgage was assigned to the complainant, he agreed to extend the time of payment for a period of six months; the consideration therefor being a guaranty by the defendant Frank Calabrese of the payment of the full amount of the principal and interest.

The defendants Frank Calabrese and Domenica Calabrese filed an answer, in which none of the allegations contained in the bill are denied, and, among other things, they aver:

"They admit that the whole amount of the principal with interest thereon from August 12, 1925, at the rate of 6 per cent. per annum, is due upon the said bond and mortgage, but that the complainant is only entitled to the sum of $2,500 and interest and the sum of $1,000 and interest as aforesaid is due to these defendants."

The complainant, in accordance with section 4 of the Chancery Act of 1915 (P. L. 1915, p. 184) gave notice of motion to strike out the answer, on the ground that it did not constitute a defense to the action; that it was filed only for the purpose of delay; and "that paragraphs 2 and 5 of the answer are not only sham, but also frivolous." A plea cannot be both sham and frivolous, but either defect is fatal. See Sculthorpe v. Commonwealth Cas. Co., ...