(concurring). I am not clear that an answer should be allowed which denies the execution of the mortgage on which the action is brought, and the notes it was given to secure, and at the same time alleges payment of such notes; which denies the recovery of judgments on such notes, and at the same time alleges that no execution as prescribed by statute had been issued upon such judgments; and also alleges payment thereof. These defenses seem to be entirely and necessarily inconsistent. But the general denial contained in the answer put in issue the allegations in the complaint that Graham Martin died intestate at the city of Albany; that he was insolvent; that Mary Graham died intestate in the city of Albany, leaving, her surviving, plaintiff, her only heir at law and next of kin; also the assignment by Dudley Olcott, individually and as president of the Mechanics’ & Farmers’ Bank of Albany, of the mortgage in suit, and the notes it was given to secure to said bank, and the assignment by ihe latter to the plaintiff. Such denials were not inconsistent with the other allegations in the answer. It appears that at the special term the defendant was directed to elect as between the general denial and the other defenses asserted in the answer, and,' failing to so do, the first clause of the answer was stricken oxit. The effect of the oi*der from which the appeal is taken was to strike out the denial of the assignments and other denials above referred to, not inconsistent with the other allegations in the answer, and, on the issues made by which defendant had a right to a trial by a court or jury, assuming that plaintiff was entitled to some relief, the order, I think, shoxxld not have stricken out the first claxxse of the answer absolutely, but only so far as it denied the execution of the mortgage and notes, or it should have provided that defendant might amend the same by excepting from his denial the execution of the mortgage and notes. For this reason, I concur in the resxilt reached by Presiding Justice MAYHAM. ,
HEBBICK, J., not acting.