Arthur v. Brooks
New York Supreme Court
Appeal by the plaintiff from an order made at special term, overruling a demurrer to the defendants’ second answer. The action was brought to foreclose a mortgage executed on the 13th of November, 1844, by the defendants Brooks and Hodgman and one West Davis to Susan Daubeney, to secure the payment of $1600, the purchase money of the mortgaged premises.
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Appeal by the plaintiff from an order made at special term, overruling a demurrer to the defendants’ second answer. The action was brought to foreclose a mortgage executed on the 13th of November, 1844, by the defendants Brooks and Hodgman and one West Davis to Susan Daubeney, to secure the payment of $1600, the purchase money of the mortgaged premises. The complaint alledged that on the 11th of March, 1850, Susan Daubeney, the mortgagee, for a valuable consideration to her paid by the plaintiff, assigned the mortgage, and the bond accompanying the same, to him, and that $840, together with…
1Opinion of the Court
By the Court, Willard, P. J.
The only question before us is, whether the second answer constitutes a defense to the action.
The objections pointed out by the demurrer are, 1st. That it sets up matter in avoidance, and does not admit that but for the avoidance the action could be sustained; 2d. It is hypothetical; 3d. It sets up matter in avoidance, and at the same time denies the allegation it seeks to avoid; and 4th. It is insufficient.
The answer is clearly obnoxious to the three first objections. These objections render the answer bad on demurrer. (Conger v. Johnston, 2 Denio, 96. Commercial…
2Cases cited3 opinions
- Boyce v. BrownNew York Supreme Court · 1849
- Conger v. JohnstonNew York Supreme Court · 1846
- McMurray & Thomas v. GiffordNew York Supreme Court · 1850
3Cited by19 opinions
- Lamson v. FallsIndiana Supreme Court · 1855
- Gregoire v. RourkeOregon Supreme Court · 1895
- Jones v. . LudlumNew York Court of Appeals · 1878
- Richardson v. MeadNew York Supreme Court · 1858
- Corn v. LevyAppellate Division of the Supreme Court of the State of New York · 1904
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