Casserley v. Witherbee — 15 N.Y. St. Rep. 1007

Majority

p. 1007

BERNARD CASSERLEY, App’lt, v. SILAS H. WITHERBEE, Resp’t.

Headnote

Pleading;—Complaint—When defective.

Appeal from judgment on demurrer.

Bacon <6 Merritt, for app’lt; Waldo & McLaughlin, for resp’t.

—The complaint in this case is materially defective in omitting to show either a tender of the amount concededly due to the defendants or an offer to pay that amount upon its being ascertained and established at the trial. The utmost that can be recovered is the property, after the payment of the debt secured by the mortgage. That payment is a condition precedent of

p. 1008

the right of the plaintiff to recover, even if the sale was irregular and void, as the fact has been alleged in the complaint.

A case may be stated by supplying these allegations and demanding an accounting to ascertain the amount which should be paid by the plaintiff for the redemption of the property from the mortgage.

As the complaint now stands, no cause of action has been set forth, and the judgment should be affirmed with liberty to the plaintiff to amend in twenty days on payment of costs of demurrer and of the appeal.