Lyke v. Post

65 How. Pr. 298

• Court: New York Supreme Court
• Decided: November 15, 1882
• Status: Published

Opinion

Westbrook, J.

This motion has the authority of Faulks agt. Kamp (40 Superior Ct. Rep., 70) to make it. I cannot, however, follow that case. The defendant does not set up two defenses and jumble them together. He spreads before the court all the facts, and submits to the court the question of relief, whether it shall be a cancellation of the mortgage and a return of his money with interest, or a credit upon and deduction from the mortgage of the amount due upon the judgment. This makes the defense no more uncertain than the prayer for relief in the complaint in an equitable action, when the plaintiff, after claiming specific relief, also asks for such other or further relief as he may be entitled to. A suggestion to the court of the various reliefs to which a party may be entitled upon his facts does not make the pleading either indefinite or uncertain.

Motion denied, without costs, as plaintiff has the authority of a reported case to make it.