American Savings Bank v. Rice Realty & Construction Co.

Majority

p. 941

The American Savings Bank, Appellant, v. Rice Realty and Construction Company and Others, Defendants, Impleaded with John Donaldson and John Donaldson, Jr., Copartners, Composing the Firm of John Donald

p. 942

son & Company, Respondents.

—The defendants having failed to plead that their judgment lien was cut off or extinguished by the foreclosures of the second mortgages, the separate defenses in their answer are insufficient on their face, whatever should be the equities if such fact was pleaded. ' This action should be tried out on its facts rather than determined on questions of pleading. The interlocutory judgment is reversed, with ten dollars costs, and disbursements, and the demurrer is sustained, with thirty dollars costs, with leave to the defendants to serve an amended answer on payment of costs and disbursements within twenty days. ■ J enks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.