West End Savings & Loan Ass'n v. Degan
Appellate Division of the Supreme Court of the State of New York
Appeal from special term, Albany county. Action by the West End Savings & Loan Association against William Degan and others to foreclose a mortgage. The complaint, after the usual allegation, stated that defendant Degan and others-“have or claim to have some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said two mortgages.”
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Appeal from special term, Albany county. Action by the West End Savings & Loan Association against William Degan and others to foreclose a mortgage. The complaint, after the usual allegation, stated that defendant Degan and others-“have or claim to have some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said two mortgages.” Defendant Degan answered as follows: “The defendant William Degan, for separate answer to the complaint herein, (1) denies that he has or claims to have some interest…
1Opinion of the CourtLandon, J.
An answer must be tested by the complaint, and, if it puts in issue its material allegations as to the defendant, it is good enough for the purposes of the action. This answer did so, and therefore is not frivolous. No doubt the defense is an unreasonable one, but the plaintiff might have served with the summons notice upon the defendant that no personal claim was made upon him (Code Civ. Proc. § 423), and thus probably have protected himself against this answer.
The order is reversed, with $10 costs and disbursements, and the motion below denied, with $10 costs, without prejudice to any…
2Cited by1 opinion
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