Lyke v. Post
New York Supreme Court
The action was brought for the foreclosure of a purchase-money mortgage. The defendant Eenesslaer Post, in his answer, alleged fraud and deceit in the sale to him of the premises in question, concerning the lien of a judgment affecting said premises, and demanded judgment for a cancellation of said mortgage and a recovery by him of the amount paid thereon," or that the amount of the judgment be deducted from the amount of the mortgage.
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The action was brought for the foreclosure of a purchase-money mortgage. The defendant Eenesslaer Post, in his answer, alleged fraud and deceit in the sale to him of the premises in question, concerning the lien of a judgment affecting said premises, and demanded judgment for a cancellation of said mortgage and a recovery by him of the amount paid thereon," or that the amount of the judgment be deducted from the amount of the mortgage. The plaintiff moved at special term for an order requiring “ the answer herein to be made more definite and certain, that is to say, that the defendant…
1Opinion of the CourtWestbrook, J.
This motion has the authority of Faulks agt. Kamp (40 Superior Ct. Rep., 70) to make it. I cannot, however, follow that case. The defendant does not set up two defenses and jumble them together. He spreads before the court all the facts, and submits to the court the question of relief, whether it shall be a cancellation of the mortgage and a return of his money with interest, or a credit upon and deduction from the mortgage of the amount due upon the judgment. This makes the defense no more uncertain than the prayer for relief in the complaint in an equitable action, when the plaintiff, after…
2Cited by1 opinion
- Seymour v. WarrenAppellate Division of the Supreme Court of the State of New York · 1902