#### Catharine E. Deerman, Resp’t, *v.*Gardiner Smith, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed February 24, 1890.)*

Costs—Fbivolous answeb.

The defendant held, as security for becoming plaintiff's endorser, a *637certificate o. entitling plaintiff to purchase certain lands of the state, and also a chattel mortgage. Having paid her debt, plaintiff demanded ■of him a reassignment of the certificate and a satisfaction of the mortgage. PVlien these latter papers were presented to defendant he declined to execute them, and solely on the ground that he did not understand their force. Plaintiff then brought her action to enforce the execution of these instruments. *Held,*that the court, on setting aside the answer as frivolous, ■properly charged the defendant with costs, ho not having asked time to ■consult a lawyer, but having made a positive refusal.

The complaint verified August 27, 1889, sets forth that ¡Dlaintiff was the owner of a certificate of sale issued "by the state engineer, entitling her to purchase certain lands from the state, for which she paid $1,000, and gave her bond for $2,000 more.

That she assigned this October 27,1884, to defendant, to secure defendant for endorsing a note of hers of $700.

That she has paid the note in full, and since such payment has requested the reassignment of the certificate, which defendant refused.

That, as additional security, she also gave defendant May 13, 1887, a chattel mortgage which she has paid, and of which she demanded a satisfaction, which defendant refused.

The complaint asks as relief that defendant be adjudged to deliver up the assignment, and satisfy the mortgage.

The answer avers that defendant paid the last renewal of said note, for which plaintiff became indebted to him in $300, and $32 money loaned. And says that the chattel mortgage was given to secure this debt of $332. That on receiving this chattel mortgage defendant elected to hold this as security, and virtually can-celled the assignment of the certificate.

That defendant sold part of the mortgaged property, and thus paid the mortgage debt, and the residue of the property was returned to plaintiff.

That when the papers were presented to Mm, July 18, 1889, supposed to be the reassignment and the satisfaction piece, he did not know their force, and as there was a litigation "between him and plaintiff, he did not sign them.

That on the 3rd day of August, 1889, he tendered to plaintiff a release attached to a copy of the certificate of sale, which contained a consent that one Brodhead deliver the original to the plaintiff. That plaintiff refused to accept it unless the costs were paid He denies that he has refused to cancel the agreement or satisfy the mortgage, except as above explained.

A motion was made by plaintiff for judgment on the frivolousness of the answer, and judgment was granted, with ten dollars costs of motion and costs of the action.

The defendant appeals.

*John M. Van*Mten, for app’lt; *A. H. Van Burén,*for resp’t.

Learned, P. J.

The plaintiff is undoubtedly entitled to the judgment asked for, notwithstanding the answer, because nothing therein shows any right to retain the assigned certificate or to keep the mortgage as an apparent lien. But the defendant makes certain allegations which, though immaterial on the merits, might .have some bearing on the question of costs. The defendant at*638tempts to excuse himself for not signing the papers as requested. But he does not say that he gave this excuse to the plaintiff or requested time to consult Ms counsel. In all fairness he should have explained, when the request was made to him, the reason why he: declined to sign the papers. If he had needed advice as to their effect, he should have stated this and asked for time before deciding whether to sign or not. All that he says is that he did not know the full force of the papers. This might be an excuse for waiting till he could consult his lawyer. But it did not excuse a positive refusal.

Costs in equity cases are in the discretion of the trial court, and we ought seldom to interfere with the decision. Assuming the truth of the defendant’s answer, we think the court justified in imposing costs.

Judgment affirmed, with costs.

Landon and Matham, JJ., concur.