Deiches v. Western Development Co.

Headnote

Deiches v. Western Development Co., 164 App. Div. 948 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 19, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon certain promissory notes. The answer of the defendant admits the making of the notes, denies that the plaintiff was duly appointed receiver of the -¿Etna Indemnity Company or has any right, power or authority to bring the action, denies that the notes form part of the property and assets of the .¿Etna Indemnity Company, and pleads four separate and distinct defenses. Upon the trial the only defense urged by the defendant was that set up in the first separate defense, the allegations of which are that the notes were executed and delivered by the defendant to the .¿Etna Indemnity Company pursuant to a written agreement between the defendant, the ¿Etna Indemnity Company and Otto Heinze & Company; that the agreement recites that the ¿Etna Indemnity Company owned or controlled certain judgments against Otto Heinze & Company; but that the ¿Etna Indemnity Company did not own or control any judgments against Otto Heinze & Company, and that there was a total failure of consideration for the notes.

Tu that defense is also set up a counterclaim for $5,000 paid to the JEtna Indemnity Oomapny.