Opinion
November 26, 1951.
In an action to foreclose a mortgage on real property, plaintiff appeals from an order denying its motion to strike out the fourth and fifth defenses and the counterclaim contained in the answer of the defendant-respondent, who is the owner and mortgagor, on the ground that it appears on the face of the defenses and counterclaim that they are insufficient in law. Order modified so as to provide that the motion is granted with respect to the fifth defense and the counterclaim, and denied with respect to the fourth defense. As so modified, the order is affirmed, without costs, with leave to respondent to serve an amended answer within ten days from the entry of an order hereon. It is not alleged in the fifth defense that the note and mortgage are invalid or unenforcible, except by reason of a lack of surplus on the part of the respondent. A lack of surplus is no defense to an otherwise valid note and mortgage. It is not alleged in the counterclaim that any part of the moneys there referred to were paid to the appellant, nor does the counterclaim allege any facts upon which liability may be imposed upon appellant for payments made to two individuals who are not parties to the action. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.