The facts stated in the answer clearly do not amount to a defence as against the plaintiff. They make no issue between the parties to -the suit, and the answer states no facts that the plaintiff can safely- or is bound to deny. The whole answer is entirely immaterial on the question of the plaintiff’s right to recover. Its object was to lay the foundation for an order or judgment by which the equities shall "be adjusted and enforced as between the defendant Bellows and his co-defendant, Sackett. And the court is called upon to adjudicate such equities upon the facts so stated in the answer in pursuance of the 230th section of the Code of Procedure.
This cannot be done in the present state of the case. Sackett, against whom Bellows asks the relief, has omitted to answer. The consequence is, so far as he is concerned, that the facts stated in the complaint are to be taken as true and nothing further. He is not to be deemed as admitting anything set up by his co-defendant, in an answer in which he does not participate. The matters stated in the answer are not proved, and the legal effect of those contained in the complaint is directly the reverse of those in the answer. The complaint shows that Bellows was the maker of the note, and Sackett the payee and first endorser—under such a state of facts, if Sackett should pay the judgment, equity would allow him to be subrogated in the place of the plaintiff in order to avail himself of the judgment against Bellows, the original and principal debtor.
If the answer of Bellows stood before the court as proved or admitted *26by Sackett, it might and probably would form a case where the relief which the section of the code referred to, seems to contemplate, would be given to Bellows.
The motion to strike out the answer and for judgment in favor of the plaintiff against all the defendants for the amount claimed in the complaint is granted,- but the defendant Bellows may amend his answer on payment of $5 costs, the amended answer to be served in twenty days, &c.