Cohen v. Sheindelman

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The answer denies that the deed from Sheindelman and Parshelsky to Samuel Palley has been lost or destroyed. The loss or destruction of the instrument is an essential fact, to be pleaded as part of plaintiff’s cause of action. This denial, therefore, prevents judgment being taken on the pleadings. The complaint seems to be brought under section 1638 of the Code of Civil Procedure, although an action to compel defendants to execute a new deed might be maintained under the equity powers of the…