Schlesinger v. Wise

McLAUGHLIN, J.

This appeal is from an order striking out as sham an answer interposed by the defendant. The action is to recover upon a promissory note for $5,350. The second paragraph of the complaint alleges that the plaintiff, as receiver, became and still is the owner and holder of the note, for value. The fourth paragraph alleges that the note, before maturity, was indorsed by the defendant and discounted by the bank of which plaintiff is receiver in due course, and for value. Both of these allegations are ■denied in the answer, which further contains a separate and distinct defense, and what is termed an equitable counterclaim to the effect that the note sued on was delivered to the bank as collateral security, only, for the payment, of a note .for $2,500, which was given in renewal of another note for a similar amount; that the defendant, before the commencement of the action, tendered to plaintiff $2,500, together with accrued interest from the maturity of said note, and any expenses of protest in relation thereto, and demanded that he deliver up and surrender to him the note in suit, which he refused to do. He asks that the complaint be dismissed, with costs, and that- defendant have judgment upon the counterclaim to the effect that plaintiff, on being paid the sum of $2,500 with accrued interest, deliver to defendant the note upon which the action is brought.

This appeal was argued in connection with the appeal in Leo Schlesinger, as Receiver, etc., v. Benjamin S. Wise, impleaded with Leonora Wise, 94 N. Y. Supp. 718, and for the reasons given in the opinion delivered in that case the order here appealed from must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.