Colvin v. Martin

68 A.D. 633, 74 N.Y.S. 11

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1902
• Status: Published

Opinion

Per Curiam:

The plaintiff demurred to a separate defense set up in the answer. The action was brought to set aside certain conveyances by which the title to a one-half interest in fee, at one time owned by the plaintiff, in the premises described in the complaint, became vested in the defendant and for an account of one-half of the rents, issues and profits of such premises. The laintiff averred that the deeds made by im were executed while he was mentally incompetent and in pursuance of a fraudulent purpose on the part of the defendant and another to obtain the property. The answer contains certain admissions and denials of the averments of the complaint, and then proceeds to set upas a defense facts re-, lied upon to show that the conveyance by which she became invested with the title to the one-half interest was valid, made with the assent of the plaintiff upon lawful consideration and for objects beneficial to the plaintiff. The principal subjects of consideration raised by the demurrer have been so satisfactorily disposed of by the justice at Special Term that it is unnecessary, concerning them, 'to add anything to the views expressed in his opinion. There is one matter, however, to which no reference is made in that opinion. It is insisted by the appellant that the separate defense is unavailing, because it proceeds upon an admission that the deeds which the plaintiff seeks to set aside were executed by him while he was incompetent and through a fraudulent agreement in which the defendant participated. This claim of the appellant is entirely without foundation. The defendant denied all the allegations contained in the complaint not specifically admitted. In setting up the separate defense, the defendant repeats the allegations previously made in her answer. Those allegations consist of admissions of some and denials of others of the averments of the complaint, among the latter being those of the incompetency of the plaintiff and of fraud. Thus the denial of the allegation that the deeds were executed as the plaintiff averred was incorporated in 'and became part of the second defense. The interlocutory judgment should be affirmed, with costs, with leave to the plaintiff to withdraw demurrer on payment of costs in this court and in the court below. • Present— Van Brunt, P. J., Patterson, Ingraham, Hatch and Laugblin, JJ.