West v. Marritz

• Decision Date: 17 October 1932
• Docket Number: No. 155.,155.
• Citation: 162 A. 557
• Parties: WEST v. MARRITZ et al.
• Court: New Jersey Supreme Court

162 A. 557

WEST

v. MARRITZ et al.

No. 155.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1932.

Syllabus by the Court.

1. Where, upon a motion to strike out an answer, the facts alleged therein, if true, would present a valid defense or call for the relief prayed for, and the proofs before the court are in controversy as to their truth or it appears that the facts are not fully exposed, it is error to strike the answer, and in such a case the cause should go to trial or final hearing.

2. To warrant the court in striking out a plea, it must be so palpably false or insufficient in law as to enable the court to conclude that the defendant is seeking a delay or trifling with the process of the law.

Appeal from Circuit Court, Camden County.

Suit by Mary A. West against Harry Marritz and others. From an order striking out answers of certain defendants, the defendants appeal.

Order reversed.

Isadore H. Hermann, of Camden, for appellants.

Joseph Beck Tyler, of Camden, for respondent.

CAMPBELL, Chancellor.

This is an appeal from an order of the Camden circuit court striking out an answer in a proceeding to foreclose a mortgage; such proceeding having been taken under authority of the statute, 3 Comp. St. 1910, p. 3412, S 9, et seq. There is no final judgment in the proceeding, so far as the record before us discloses, but this apparently is not necessary, because by section 14, supra, it is provided: "That all persons aggrieved by any order or decree of any circuit court, in mortgage cases, may appeal from the same, or any part thereof, to the court of errors and appeals. * * *"

It appears that the complainant was the holder of a mortgage of $10,000 covering certain property in the borough of Collingswood, Camden county; that the owner had conveyed a portion thereof to one Simon Levy, and it is said that at the time of such conveyance the attorney for the complainant mortgagee, for her, had offered to release the property so conveyed from the lien of her mortgage for the sum of $6,000, together with the payment of the interest due upon the entire mortgage up to the time of settlement under such sale, and also upon payment, of a proper apportionment of the taxes. This was February 1, 1930. Title was taken, and subsequently, in April 1930, the complainant mortgagee, filed a bill of chancery to foreclose her mortgage, and it is asserted that upon the payment to her of the interest then due this proceeding was discontinued. On July 27, 1931, the present proceeding to foreclose the mortgage was commenced in the circuit court.

The appellants Levy, as well as the Mercantile Securities Company, filed answers.

The Mercantile Securities Company appears to hold a mortgage upon the portion of the mortgaged premises purchased by Levy, which mortgage is subject to any lien of the complainant's mortgage against such portion of the whole mortgaged property, to which Levy holds title.

Generally speaking, the answers set up the agreement to release appellant Levy's portion of the mortgaged lands in accordance with the agreement before referred to; that such agreement was accepted by Levy; that pursuant to, and under it, payments on account of principal and interest had been made; that it is a subsisting and existing agreement by which the complainant is bound; and that the appellant Levy was ready, able, and willing to pay the balance of principal consideration of $6,000, amounting to $5,725, and all interest, taxes, costs, and other liens; and that the complainant should not have a judgment or decree against the appellants, or their lands, for more than such an amount.

Notice was given to strike out these answers upon the following grounds: (1) That the facts alleged by way of defense are untrue. (2) That the answers are sham and frivolous. (3) "For the reasons stated in the affidavit hereto annexed."

The matter came on before the circuit court, upon affidavits, and the order appealed from, striking the answers, was the result. There is no opinion of the court below, nor are there any reasons or conclusions upon which such order was based, except the recital therein, "and the Court being satisfied that the agreement set forth in the answer was never accepted, nor was there ever any consideration therefor."

Counsel for the respondent undertakes to present two reasons, or grounds, moving and...