Stern v. Marcuse , 103 N.Y.S. 1026 ( 1907 )

Jenks, J.

(dissenting):

I dissent. The appeal is from an order of the Special Term deny^ ing a motion that the defendant Kimmerle separately state and number the alleged defenses. The right is but formal’, not substantial. (Goldberg v. Utley, 60 N. Y. 427.) Kimmerle, who, is made a party to this foreclosure action as asserting some interest in the premises, made separate answer.' His plea is that he owns a part of premises free from this mortgage, and hjs prayer is for affirmative relief, or, if that be denied, that his part' be excluded from the reach of the judgment, or at least the premises exclusive of his part be first sold, and if that sale do not satisfy the decree, he may take over the judgment so far as it is unsatisfied upon payment of the amount then due and the expenses of the sale.

I think that the pleader intended to set forth but a single counterclaim and that the pleading should thus be construed. The alleged “ denials ” are'to be read as subordinate to this plea, confined to it and-consistent with it. His-plea is in effect that such' proceedings were had that his part of the premises was freed from this mortgage, and that the defendant Marcuse, instead of taking a satisfaction thereof fro tanto, and in violation of his legal obligation, caused the mortgage to be assigned to this plaintiff in his own interest and this suit to be begun in that interest. In fine, the concern of the defendant is with this part of the premises only, and his position is that as to it there is no valid mortgage. ' .

The grievance stated by the appellant is that she cannot demur save to the entire answer. But the denial .of this motion does not hinder demurrer. (O'Connor v. Virginia Passenger & Power Co., 184 N. Y. 47.)

Order reversed, with ten dollars costs and. disbursements, and motion, granted, with costs.