Wiener v. Mayer — 126 A.D. 708

Majority

p. 708

Samuel Wiener, Appellant, v. Isaac Mayer and Henry Mayer, Respondents, Impleaded with Solomon Boehm and Bernhard Heine, Defendants.

First Department,

June 5, 1908.

Headnote

Pleading — demurrer — similar defenses sustained.

Where the separate defenses of two defendants are of the same nature as those of other defendants which have been sustained upon demurrer, a demurrer thereto will be overruled

p. 709

Appeal by the plaintiff, Samuel Wiener, from an interlocutory judgment of the Supreme Court in favor of the defendants Mayer, entered in the office of the clerk of the county of Hew York on the 26th day of February, 1908, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the plaintiff’s demurrer to certain separate defenses contained in the amended answer of the defendants Mayer.

Edward W. S. Johnston, for the appellant.

Rose & Putzel, for the respondents.

The separate defenses interposed by the respondents Isaac and Henry Mayer are of the same nature as those interposed by the defendants Boehm and Heine, to which the plaintiff demurred, and which are sustained as sufficient by a decision of this court handed down herewith on an appeal by plaintiff from an interlocutory judgment overruling his demurrer thereto. ( Wiener v. Boehm, 126 App. Div. 703 .) The only material difference between the defenses considered on the other appeal and the defenses interposed by these respondents is that the latter defenses are more definite, full and complete, and the defense that plaintiff, by an agreement with the grantees of the mortgaged premises, extended the time of payment contains an allegation that the extension was made for a good and valuable consideration. With these exceptions, the discussion in the opinion delivered in deciding the other appeal is applicable to the defenses interposed by the respondents, and further discussion is not required.

It follows that the interlocutory judgment should be affirmed, with costs, on the authority of that opinion.

Present — Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ.

Judgment affirmed, with costs, with leave to the plaintiff to withdraw demurrer on payment of costs.