Cochrane v. Cecelia Bauer — 25 N.Y. St. Rep. 510

Majority

p. 510

James Cochrane, Resp’t, v. Cecelia Bauer et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Foreclosure—Answer—Sufficiency.

In an action to foreclose a mortgage, the answer alleged that the assignment to plaintiff of the mortgage was not made bona fide, but for the purpose of preventing defendant from setting up any defense to the mortgage; that plaintiff’s assignor prevented defendant from obtaining possession of and selling the land. H Id, that the defenses as stated do not import a legal demand in favor of defendant.

8. Same—Defective answer.

The answer further alleged that defendant was entitled to a credit of a certain amount upon the bond and mortgage for money of defendant received by plaintiff’s assignor. Held, that the allegation states no facts, being merely a conclusion of law.

Appeal from a judgment of foreclosure and sale.

This action is brought to foreclose a mortgage of $12,500, made by Thomas C. Shannon to Moritz Bauer, dated May 3, 1888, payable on or before May 3, 1889, with interest payable semi-annually on the third days of November and May. The bond, to secure which the mortgage was given, contained similar provisions, and both contained an interest clause providing that if the interest should remain unpaid for thirty days after it became due, the principal should become ■due immediately, at the option of Bauer or his legal representatives. Default was made in the payment of the interest that became due November 3, 1888, and Henry P. Degraaf, plaintiff’s assignor, to whom Bauer has assigned the bond and mortgage by assignment, dated August 30, 1888, and recorded on the 1st day of September, 1888, elected to treat the principal as due. Degraaf assigned the bond and mortgage to plaintiff by assignment, dated December 13, 1888!, and recorded on the day following.

The defendant, for answer to the plaintiff’s complaint, alleges:

First—That the assignment to plaintiff of the mortgage set forth in the complaint herein was not made bona fide, but, if made at all, was made for the purpose of preventing this defendant from making any defense which she might have to said mortgage.

Second—That at the time of the assignment of said mortgage to the plaintiff there was not due upon said mortgage the amount alleged in said complaint.

Third—That the assignor of the plaintiff prevented the defendant from entering upon said lands and selling the same, and thereby damaged her to the amount of $10,000, which said amount, this defendant claims to recoup against said plaintiff, and against said mortgage.

p. 511

Fourth—That this defendant is entitled to a credit of $450 or thereabouts upon said mortgage, for moneys of defendant received by plaintiff’s assigner.

Donohue, Newcombe & Cardozo, for app’lts; James Ii. Marvin, for resp’fc.

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 assigner was holder of the mortgage.

The fourth sub-division of the answer 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 he held 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 re-settled on motion so as to show that they were not tried or decided in this cause.

Judgment affirmed with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.