Oceanic Investing Co. v. Twenty-eighth Street & Seventh Avenue Realty Co.

The action is the usual one for the foreclosure of a mortgage. A large number of defendants are named, most of them presumably tenants of the property, but the present motion is directed only against the defendant Rodel, said to be a junior mortgagee, who has interposed an answer, although no personal judgment is asked against him. He does not deny the mortgage, nor the fact that default has been made in the payment of the principal according to the terms of the mortgage. He denies for lack of knowledge or information sufficient to form a belief certain allegations which, as to him, at least, are immaterial, and undertakes to deny, although rather awkwardly, the allegation as to the non-payment of interest. This, however, is not material, because the non-payment of the *886principal is sufficient to warrant a judgment. By a separate defense defendant attempts to set up, also on information and belief, an agreement by the plaintiff or its assignors to extend the time of payment of the mortgage. This allegation, however, is defective and ineffectual because it does not say with whom the agreement was made, or show that if such an agreement was made respondent is entitled to avail himself of it. The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to respondent to amend his answer within twenty days upon payment of all costs of the action. Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant respondent to serve amended answer upon payment of all costs of the action.