Opinion
March, 1934.
Order reversed on the law, with ten dollars costs and disbursements, motion denied, with ten dollars costs, and the plaintiff's time to reply extended ten days from the entry of the order herein. The defendant in its amended answer has set forth matters by way of defense and counterclaim which, if substantiated upon the trial, would seem to constitute rights in the mortgaged premises which otherwise would be cut off in this foreclosure action. The plaintiff may not have that issue determined on a motion for judgment on the ground that the answer is sham and frivolous, pursuant to rule 104 of the Rules of Civil Practice, by the submission of voluminous proof involving the title and the rights of the parties. Lazansky, P.J., Young, Hagarty, Carswell and Davis, JJ., concur.