Cochrane v. Bauer — 6 N.Y.S. 955

Majority

p. 955

Cochrane, Respondent, v. Bauer et al., Appellants.

(Supreme Court, General Term, Second Department.

July 2, 1889.)

Headnote

Appeal from special term, Westchester county.

Action by James Cochrane against Cacilie Bauer, (sometimes called Cacelia Baure,) Thomas C. Shannon, and Antonie Silverstone, to foreclose a mortgage executed by defendant Shannon to Moritz Bauer. The mortgage, by mesneassignments, passed to plaintiff.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Donohue, Newcombe <& Cardoza, for appellants. James R. Mamin, for respondent.

Neither of the so-called defenses set up in the answer are so stated as to import a legal demand in favor of defendant. Had they been stated in a complaint as claims against a defendant, they would be demurrable. Nor is it stated that the matters complained of took place while the plaintiff’s-assignor was holder of the mortgage. The fourth subdivision of the complaint is the statement of a conclusion of law, no facts being stated sufficient for its support. If the moneys were received by plaintiff’s assignor while beheld the mortgage, as a payment thereupon, or in any way that entitled this defendant to apply them on the mortgage, the facts should have been stated. The fact that he received defendant’s money is not inconsistent with its being-paid to him to discharge some obligation wholly independent of the matter in suit. If defendant has a claim against the plaintiff’s assignor she can bring her action; and, if it be feared that this judgment could be used as evidence of an adjudication adverse to the claim, it would be a matter of course for the-judgment to be resettled on motion, so as to show that they were not tried or-decided in this cause. Judgment affirmed, with costs.