113 N.Y.S. 983 | N.Y. Sup. Ct. | 1908
The plaintiff moves for judgment on the pleadings. This motion is made in an action to foreclose two mortgages. The amended complaint sets forth the making and delivery of the bonds and mortgages, the recording of the mortgages, the release by the plaintiff of certain parts of the mortgaged premises, the fact that the plaintiff has been obliged to pay certain taxes and assessments to preserve his liens, and alleges that the defendants, other than the mortgagors, have subsequent interests, subject and subordinate to the plaintiff’s mortgages, and demands judgment of foreclosure and sale. Two infant defendants have answered, by their guardian ad litem,; claiming such interest in the premises as they are entitled to and submitting their rights and interests in the matter in question to the protection of the court. All of the other defendants are in default, except the Hamilton National Bank of Chicago. The Hamilton National Bank of Chicago has put in an answer. In this answer it alleges “ that it has no knowledge or information sufficient to form a belief as to the truth of any of the allegations contained in the articles of said amended complaint, marked 1, 2, 3, 4, 5, 6, 7 and 8.” The answer contains a similar allegation as to the 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th and 20th paragraphs of the amended complaint. These attempted denials are insufficient to raise an issue. In Jurgens v. Wichmann, 124 App. Div. 531, Mr. Justice Gaynor pointed out, with his usual clearness, the respects in which similar allegations were defective and characterized them as “ too slovenly and loose.” That criticism applies with full force to the answer now under consideration. The answer of this defendant, as an alleged defense to the cause of action
Hpon the pleadings as they stand, the plaintiff is entitled to judgment, and section 547 of the Code of Civil Procedure is the sufficient warrant for awarding such judgment. That section provides that: “ If either party is entitled to judgment upon the pleadings, the court may upon motion at any time after issue joined give judgment accordingly.”
This section was added to the Code by chapter 166 of the Laws of 1908. In 1870 the Court of Appeals sustained the order of the Special Term granting “ judgment upon the pleadings,” although at that time there was no specific statutory authority for such an order. People v. Northern Railroad Co., 42 N. Y. 217, 233. Section 547 of the Code, as enacted in 1908, is specific authority for the practice which, without such authority, the Court of Appeals sanctioned in 1870. The section, in its present form, is remedial in its nature, and I think should be given
Ordered accordingly.