JEFFERSON TRUST CO. v. BALK, 120 N.J. Eq. 202 (1936)

184 A. 527

JEFFERSON TRUST COMPANY, complainant-respondent, v. HARRY BALK and ADA BALK, his wife, defendants-appellants.

Court of Errors and Appeals.Submitted February term, 1936.
Decided April 24th, 1936.

Answering defendants are entitled to be heard before the master to whom the cause has been referred to ascertain and report the amount due upon the mortgage, though their answer and counter-claim were properly struck out as sham.

On appeal from a decree of the court of chancery.

Mr. Edward Stover, for the appellants.

Messrs. Gaede Gaede, for the respondent.

PER CURIAM.

The answer and counter-claim interposed by the defendants, Harry Balk and Ada Balk, his wife, in respect of the allegations of a subsequent agreement to postpone foreclosure of the mortgage, in consideration of the payment of the rental income to complainant, if not frivolous, were clearly sham, and were therefore properly struck out.

But the issue of the amount due upon the mortgage remains to be determined, and upon this the answering defendants are entitled to be heard before the master to whom the cause has been referred to ascertain and report the amount due upon the mortgage. The decree should be modified to include such provision.

The decree is accordingly modified, and, as so modified, affirmed.

For modification — THE CHIEF-JUSTICE, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 12.

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