Landefeld v. Seibert

Appellate Division of the Supreme Court of New York

Landefeld v. Seibert

8 A.D.2d 973, 190 N.Y.S.2d 832, 1959 N.Y. App. Div. LEXIS 7509

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 28, 1959

StatusPublished

This text of 8 A.D.2d 973 (Landefeld v. Seibert) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Landefeld v. Seibert, 8 A.D.2d 973, 190 N.Y.S.2d 832, 1959 N.Y. App. Div. LEXIS 7509 (N.Y. Ct. App. 1959).

Pincite

Opinion

In an action to foreclose a mortgage on real property, the appeal is from so much of an order as denied appellant’s motion to strike out respondent’s second affirmative defense for legal insufficiency (Rules Civ. Prae., rule 109), and for summary judgment striking out the answer (Rules Civ. Prae., rule 113). Order insofar as appealed from affirmed, with $10 costs and disbursements. There is a triable issue of fact as to whether the parties intended the mortgage, to cover three plots, as appellant claims, or only two, as respondent contends. That issue bars summary judgment (Clinton Trust Co. v. Church Extension Committee, 255 App. Div. 157). On a motion pursuant to rule 109 to strike out a defense, affidavits may not be considered. From the pleadings alone it cannot be determined whether the gambling debt alleged in the second affirmative defense was legal and enforcible (see L. 1940, ch. 254, § 2; Fla. Stats., Ann., § 849.26), or whether it was illegal and unenforcible, since the pleadings do not disclose the place and precise nature of the gambling. Hence, the second affirmative defense is sufficient on its face and should stand until trial. Wenzel, Acting P. J., Beldock, Murphy and Kleinfeld, JJ., concur; Hallinan, J., not voting.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to foreclose a mortgage on real property, the appeal is from so much of an order as denied appellant’s motion to strike out respondent’s second affirmative defense for legal insufficiency (Rules Civ. Prae., rule 109), and for summary judgment striking out the answer (Rules Civ. Prae., rule 113). Order insofar as appealed from affirmed, with $10 costs and disbursements. There is a triable issue of fact as to whether the parties intended the mortgage, to cover three plots, as appellant claims, or only two, as respondent contends. That issue bars summary judgment (Clinton Trust Co. v. Church Extension Committee, 255 App. Div. 157). On a motion pursuant to rule 109 to strike out a defense, affidavits may not be considered. From the pleadings alone it cannot be determined whether the gambling debt alleged in the second affirmative defense was legal and enforcible (see L. 1940, ch. 254, § 2; Fla. Stats., Ann., § 849.26), or whether it was illegal and unenforcible, since the pleadings do not disclose the place and precise nature of the gambling. Hence, the second affirmative defense is sufficient on its face and should stand until trial. Wenzel, Acting P. J., Beldock, Murphy and Kleinfeld, JJ., concur; Hallinan, J., not voting.

Cite This Page — Counsel Stack

Bluebook (online)

8 A.D.2d 973, 190 N.Y.S.2d 832, 1959 N.Y. App. Div. LEXIS 7509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landefeld-v-seibert-nyappdiv-1959.

Opinion

Related

Cite This Page — Counsel Stack