It is enough, in order to dispose of this case, to say that the answer was by no means clearly frivolous. The facts set up show that the mortgage, sought to be foreclosed in the action referred to, secures the principal debt for which these notes were alleged to have been mere security to the knowledge of the plaintiff.
It is at least questionable whether the appellant is not entitled, on establishing these facts, to the relief he asks for by his answer. But that is a question which should be determined by the trial, and not by a summary motion, on the ground that the answer is frivolous. It requires an argument stronger we think, than can be made, to show that the answer is frivolous; and of course in such a case the defendant is entitled to a formal trial of the issue, either of fact or of law. (Youngs v. Kent, 46 N. Y., 672; Strong v. Sproul, 53 N. Y., 499.)
The form of the notes is not controlling, for the defendant alleges that the bank received them with full knowledge that they were mere collateral securities for the defendant’s indebtedness secured by the bond and mortgage. (2 B. S. [Edmund’s ed.], 199, §§ 153, 154.) •
The order striking out the answer as frivolous and the judgment entered thereon should be reversed, with costs.
Present — Davis, P. J., Beady and Baekett, JJ.Order and judgment reversed, with costs.