Horton v. . Bauer
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 13, 1891, which affirmed a judgment in favor of plaintiff, entered upon an order of the Special Term confirming the report of a referee. This was an action for the foreclosure of a mortgage upon certain real estate in the city of New York. Defendant Bauer interposed as a counter-claim an alleged breach of a covenant on the part of plaintiff.
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Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 13, 1891, which affirmed a judgment in favor of plaintiff, entered upon an order of the Special Term confirming the report of a referee. This was an action for the foreclosure of a mortgage upon certain real estate in the city of New York. Defendant Bauer interposed as a counter-claim an alleged breach of a covenant on the part of plaintiff. On August 3, 1887, plaintiff was seized of the mortgaged premises. A street railroad had laid its tracks upon a portion…
1Opinion of the CourtFinch, J.
The counter-claim asserted by the defendant rested upon two facts: one, the contract of indemnity executed by the plaintiff relative to the encroachment of the street railroad company upon the lands agreed to be purchased ; and the other, an alleged failure of a later and more profitable contract between the defendant and Borger for the sale of the .same land, which failure was traced to the presence of that encroachment. There is no doubt that at the date of each contract the tracks of the railroad were in fact located upon the land in controversy, and to the knowledge of both plaintiff and…
2Cases cited1 opinion
- Jenkins v. . FaheyNew York Court of Appeals · 1878
3Cited by3 opinions
- Harris Structural Steel Co. v. ChapmanCity of New York Municipal Court · 1937
- In re ChanlerAppellate Division of the Supreme Court of the State of New York · 1901
- Lally v. New York Central & Hudson River RailroadNew York Supreme Court · 1908