This is an action for the foreclosure of a mortgage, and a general assignee of the mortgagor for the benefit of creditors is made defendant. He interposed an answer, and set up that on or about the month of July, 1876, by an instrument in writing, duly executed under his hand and seal, the plaintiff sold, assigned and set over the bond and mortgage mentioned and described in the complaint in this action unto one John Surrin, who thereupon became the lawful owner and holder thereof. A motion was made to strike out this answer as frivolous, which was granted, and an appeal from that order brings the case here.
The fact set up constitutes a defense to this action, and if proven on the trial would prevent a judgment for the plaintiff. We think therefore the answer was not frivolous, and the order appealed from must be affirmed, with costs and disbursements.
BarNAED, P. J., concurred. Present — BarNard, P. J., Gilbert and DyemaN, JJ.Order affirmed, with costs and disbursements.