Gillette v. Smith
New York Supreme Court
Appeal from a judgment of foreclosure and sale entered upon the trial of this action by the court without a jury. The action was brought to foreclose a mortgage. In addition to the matters of defence set forth in the following opinion, the answer contained the following counter-claim.
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Appeal from a judgment of foreclosure and sale entered upon the trial of this action by the court without a jury. The action was brought to foreclose a mortgage. In addition to the matters of defence set forth in the following opinion, the answer contained the following counter-claim. This defendant, for a further answer and defence to the whole complaint, by way of counter-claim, says : That on the 22d day of October, 1860, the said Jacob Smith was (if the said note then had any vitality whatever) Lie owner and holder of said note, and so continued to own and hold it during all the time…
1Opinion of the Court
BARNARD, P. J. :
The facts in this case are simple and entirely uncontradicted. In 1852, Howell D. Smith, one of the defendants, became indebted to Jacob Smith and Reuben. Edwards, as partners, in the sum of $167, for lumber bought by him of that firm. In October of that year, Howell D. Smith executed a scaled note to Smith & Edwards, and also at the same time executed to them a mortgage on lands as collateral thereto. In 1853, the firm became dissatisfied with the mortgage security, and the note of 1852, with the accompanying mortgage, were given up and canceled, and a new note, with accrued…
2Cases cited6 opinions
- Heyer v. PruynNew York Court of Chancery · 1839
- Gerwig v. . SitterlyNew York Court of Appeals · 1874
- Pratt v. HugginsNew York Supreme Court · 1859
- Suydam v. BartleNew York Court of Chancery · 1841
- Gambling v. . HaightNew York Court of Appeals · 1874
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