Kouwenhoven v. Gifford

Headnote

Kouwenhoven v. Gifford, 143 App. Div. 913 , appeal dismissed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial

department, entered February 17, 1911, which affirmed an order of Special Term granting a motion for judgment upon the pleadings in an action to foreclose a mortgage.

The following questions were certified:

“First. In this action for the foreclosure of a purchase-money mortgage, in which no allegation of the complaint is denied, does the counterclaim for breach of covenant against incumbrances so put in issue the amount due plaintiff under the mortgage as to prevent the making of an order at Special Term directing judgment on the pleadings?

“Second. Is the appellant, mortgagor, entitled as a matter of right to a jury trial of the issues raised on her counterclaim for breach of covenant against incumbrances in this action to foreclose a purchase-money mortgage?

“Third. Does the failure of the plaintiff in this action to reply to the mortgagor’s counterclaim for breach of a covenant against incumbrances so diminish the plaintiff’s recovery as to prevent the court at Special Term from making an order directing judgment of foreclosure on the pleadings? ”