It was held, in the People v. McCumber (18 N.Y., 315), that a motion to strike out one defence, as sham, under section 152 of the Code, may be united with an application for judgment on account of the frivolousness of the other defences, under section 247, and such was the motion in this case. The defendant has the right to have every real and substantial issue tendered by his answer tried in the modes prescribed by law, and this right should be sacredly guarded by the courts. A defence should not be stricken out as sham or false, unless it is clearly so, and judgment should not be given under section 247, unless the answer is palpably frivolous. If upon a motion under either section, the case presented to the court is a doubtful one, the motion should be denied, and the case left to be disposed of by trial in the ordinary way. The portion of the answer in this case sought to be stricken out as false, so far as the same is at all material, alleges, upon information and belief, that the defendant Duryea has paid, or secured, or caused to be paid or secured the interest or some part thereof, which became due upon the mortgage November 1st, 1865, or that the plaintiff has extended, or agreed to extend the time for the payment of the same. These allegations are quite loose and uncertain. The plaintiff moves to strike them out upon his own affidavit that they are entirely false. This is as explicit, positive, and direct, as he well could be. While the defendant made an affidavit to oppose the motion, he did not in any way attempt to fortify or sustain these allegations. If he had no personal knowledge upon which he based them, he could at least have given the sources of his information, and the grounds for his belief. This he did not do, and hence, I think, a case was clearly made for striking out the allegations as false. *Page 574
The balance of the answer is clearly frivolous. In one portion of the complaint there is an allegation that the appellant is in possession of the mortgaged premises as tenant, and that he claims some interest therein by virtue of a lease from the defendant, Duryea. In another portion of the complaint is the general allegation that he and other defendants have, or claim to have some interest in or lien upon the mortgaged premises, which interest or lien, if any, has accrued subsequently to the lien of the mortgage. In his answer the appellant admits that he is in possession, but denies that he is in as tenant, or by virtue of any lease from Duryea, and alleges that he is the true and lawful owner of the premises; but in other parts of his answer he alleges facts showing clearly that his interest in the premises, if any, was clearly subsequent to the lien of the mortgage, and that he was in possession under an agreement between him and Duryea, and that he was at least nominally Duryea's tenant. Hence the allegation in the answer as to the manner of the appellant's occupancy and the nature of his title tendered no material issue, and may properly be treated as irrelevant or frivolous.
The allegation in the second answer, that the wife of the appellant had an inchoate right of dower in the premises, and hence was a necessary party to the action, is clearly frivolous. The facts alleged in the answer show that the appellant never had the legal title to the premises. All he had was a mere equity, to which no right of dower in his wife could attach.
The third defence is also clearly frivolous. It alleges that in April, 1865, the appellant entered into contract for the purchase of the mortgaged premises from the plaintiff for $6,000, and that $4,000 of the purchase price was to be secured by a mortgage upon the premises, payable on or before May 1, 1868, the deed and mortgage to be given July 24th, 1865; that prior to the said 24th day of July he borrowed money of the defendant, Duryea, at a usurious rate of interest, and assigned to him this contract as security for the said usurious loan, and consented that he should take the *Page 575 deed of the said premises, under the said contract, and give the said purchase-money mortgage. The defendant also alleges that the plaintiff knew of this usurious arrangement between him and Duryea, and with such knowledge executed the deed and took the mortgage on the said 24th day of July.
I do not see how all these facts constitute, as to the plaintiff, any defence. There is no allegation that the plaintiff had any part in the usurious agreement, or that he was in any way benefited by it. This mortgage was for the precise amount due him. The contract was assigned to Duryea, and plaintiff was directed to give the deed to him. This he was bound to do, and if he had refused, Duryea could have compelled him, by an action for specific performance. The usury, and his knowledge of it, between the appellant and Duryea, would have constituted no defence as to him. He was a stranger to the usurious contract, and it has been settled by repeated adjudications, that a mere stranger to a usurious contract cannot avail himself of the usury. (Murray v.Judson, 9 N.Y., 73; Rosa v. Butterfield, 33 N.Y., 665; O. M.R.R. Co. v. Kasson, 37 N.Y., 218; Williams v. Tilt,36 N Y, 319; Mason v. Lord, 40 N.Y., 476.)
It might have made a difference if, before the deed was given, the appellant had repudiated the usurious contract between him and Duryea, and notified the plaintiff of such repudiation, and forbade him giving the deed. But it is expressly alleged in the answer that the deed was given by the permission of the appellant, the only person who could set up the usury. Hence there can be no doubt that the plaintiff properly gave the deed to Duryea, and that the mortgage he took for the purchase-money is a valid security in his hands.
It is clear, therefore, that the facts alleged in this portion of the answer constitute no defence as to the plaintiff, and the only remaining question as to them is, whether the appellant had the right to set them up for the purpose of claiming an adjustment of the equities between him and his co-defendant, Duryea, and I am clearly of the opinion that he had not *Page 576
The plaintiff, in his complaint, must state facts constituting a cause of action, in his favor, against the defendant, and he must demand relief, in his favor, against the defendant. The answer of the defendant is confined to a defence of the claim made by the plaintiff, or a counter-claim against the plaintiff, not against a co-defendant. If a defendant does not choose to answer, the relief against him cannot exceed that which the plaintiff has demanded against him in the complaint.
Here the defendant, Duryea, has interposed no answer, and he has had no notice that any relief would be claimed against him in the action, except what is prayed for in the complaint. He has had no notice of the facts alleged in the appellant's answer, and he has not in any way admitted them. There is no way of framing an issue in this action between him and the appellant, and I know of no way of compelling him to come into court in this action, and litigate with his co-defendant.
It would be a great novelty in legal proceedings if a plaintiff, whose rights are really not disputed, and who has no controversy with either defendant, could be obliged to stand still, look on and be delayed, while the defendants are litigating questions, in which he has no interest, with each other.
It is true that section 274 of the Code provides that the judgment in an action "may determine the ultimate rights of the parties on each side, as between themselves." This provision cannot reach such a case as this; and it seems to me that defendants can have relief against each other only in a case in which they have appeared and answered, in reference to the claim made against them by the plaintiff, and as a part of the adjustment of that claim, and that it must be based upon the facts involved in, and brought out by the litigation and investigation of that claim. In such a case, all the parties being before the court, and all having been heard, and the facts being properly before the court, the rights as between plaintiffs and defendants not only, but as between the parties on either side, can be adjusted. (Mechanics, c., Savings Institution v.Roberts, 1 Abb., 382; Woodworth v. Bellows, *Page 577 4 How., 24; Norbury v. Seely, 4 How., 73.) Here the matters which the appellant sets up against his co-defendant, have nothing whatever to do with the plaintiff or his claim. They are the facts for an independent litigation between him and his co-defendant, Duryea, and should not be permitted to embarrass this action.
Having thus considered all the questions which I deem important, I reach the conclusion that this judgment should be affirmed, with costs.
All for affirmance, except LOTT, Ch. C., not sitting. Judgment affirmed with costs.