This is a foreclosure suit of a purchase-money mortgage wherein a judgment of deficiency is prayed for, in case a sale fails to produce an amount sufficient to pay the mortgage, with interest and costs. ’
The answer, among other matters, puts in issue the amount claimed to be due, by setting up a counter-claim for damages by reason of a breach of the covenant of seizin in the deed. The plaintiff moved to strike out the answer as sham and irrelevant, and for judgment upon it as frivolous.
It is a sufficient answer to this motion that it would require argument to prove that it was frivolous. It is only in cases where the answer is so clearly bad as to require no argument or illustration that the same can be stricken out as frivolous. (Strong v. Sproul, 53 N. Y., 497.) Again, that part of the order was not appealable under section 537 of the Code of Civil Procedure.
The answer is not sham, for it is not proved to be false, and it is not irrelevant if it sets up any defense that can be proved upon the trial. The defendant had a right to contest the amount due, and it was a proper way to do that by setting up a counter-claim.
If the plaintiff, at the time the deed was delivered, had no title to or possession of the property, there was a breach of the covenant of seizin at the instant of such delivery, which'entitled the defendant to damages, and there is no reason in saying that he shall be driven to separate suit upon that covenant when proper relief can be *376obtained in this one suit. The plaintiff asked for a personal judgment against the defendant upon an’ action of contract, and the defendant’s claim arises out of contract and falls within the description of a counter-claim under the Code (§ 501). (Hunt v. Chapman 51 N. Y., 555; Bathgate v. Haskin, 59 id., 533; Seligman v. Dadley, 14 Hun, 186; Wiltsie on Foreclosure, § 376.) It is true that it has been held that a breach of the covenant of a deed without eviction cannot be pleaded in bar of a suit to foreclose a purchase-money mortgage.
In McConihe v. Fales (107 N. Y., 404) it is held that a failure of title is no defense to a foreclosure suit without an allegation of fraud in sale or an eviction. But in that case there was no breach of covenant set up as a counter-claim to reduce the amount due in equity upon the bond. The late case of Kirtz v. Peck (113 N. Y., 222) is to the same effect, but I find no case decided since the enactment of section 501 of Code of Civil Procedure which holds that a breach of the covenant of seizin cannot be set up as a counter-claim under such circumstances as exist here.
The order is affirmed, with costs.
Dykman, J., concurred; Barnard, P. J., not sitting.Order affirmed, with costs and disbursements.