Potter v. Thomashow ( 1946 )

Action to foreclose a mortgage. Appeal by defendants Thomas-how from an order insofar as it granted plaintiff’s motion to dismiss the first defense in the answer based on the Statute of Limitations and the second defense and counterclaim based on an alleged agreement to refrain from foreclosure under circumstances pleaded. Order modified on the law by striking out the provision granting plaintiff’s motion to dismiss the second defense insofar as it was pleaded as a defense, and by inserting therein a provision denying the motion to strike out the second defense as such. As thus modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to the appellants. The matter pleaded as a second defense and counterclaim is sufficient in law as a defense, as a matter of mere pleading. Lewis, P. J., Carswell, Johnston, Aldrich and Nolan, JJ., concur.