Keane v. Mixter

Plaintiffs have moved for an order striking out the “ Third ” separate defense contained in the answer of the defendants Mixter, on the ground that it is sham and insuEcient in law. The action is brought for the foreclosure of four certain mortgages given by the defendants Mixter to plaintiffs’ testatrix, Gertrude Werner Howe, in her lifetime.

The defense in substance alleges that there is another “ action ” or “ proceeding ” instituted prior to this action, now pending in the Surrogate’s Court of Broome County, seeking a judicial determination of the identical facts and issues raised by the…