Eaton v. . Wells
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term which vacated and set aside a judgment herein, in favor of plaintiff, entered upon an order directing judgment on the pleadings as against defendant Wells, who alone appeared and answered, and on default as to the other defendants. The nature of the action and the facts are set forth sufficiently in the opinion.
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Appeal from order of the General Term of the Supreme Court, in the second judicial department, reversing an order of Special Term which vacated and set aside a judgment herein, in favor of plaintiff, entered upon an order directing judgment on the pleadings as against defendant Wells, who alone appeared and answered, and on default as to the other defendants. The nature of the action and the facts are set forth sufficiently in the opinion. The plea of tender is never an admission of an amount due greater than the amount tendered. (7 Wait’s Actions and Defenses, 597.) The granting of…
1Opinion of the Court
Folger, Ch. J.
This was a suit to foreclose a mortgage. There were pleadings by an amended complaint and an amended answer. There would have been an issue of fact, whether there was any thing due and payable on the mortgage by its terms, at the commencement of the suit, had it not been for an allegation in the answer of a tender of a sum certain, at a day and place certain, in payment of the mortgaged debt. The defendant, having averred a tender, was bound by that statement in his pleading, and the plaintiff and the court could accept the averment as an admission establishing the fact that a…
2Cases cited3 opinions
- Spalding v. VandercookNew York Supreme Court · 1829
- People v. HumphreyNew York Supreme Court · 1810
- Roosevelt v. New York & Harlem RailroadNew York Supreme Court · 1866
3Cited by28 opinions
- Jacobson v. . Brooklyn Lumber Co.New York Court of Appeals · 1906
- Grady v. Utica Mutual InsuranceAppellate Division of the Supreme Court of the State of New York · 1979
- Wood v. . LaryNew York Court of Appeals · 1891
- Talmage v. . Third Nat'l B'k of City of N.Y.New York Court of Appeals · 1883
- LaRault v. PalmerWashington Supreme Court · 1909
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