Stuart Realty Co. v. Municipal Investors, Inc.

Appellate Division of the Supreme Court of New York

Stuart Realty Co. v. Municipal Investors, Inc.

257 A.D. 841, 12 N.Y.S.2d 81, 1939 N.Y. App. Div. LEXIS 8109

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

DecidedMay 8, 1939

StatusPublished

This text of 257 A.D. 841 (Stuart Realty Co. v. Municipal Investors, Inc.) 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

Stuart Realty Co. v. Municipal Investors, Inc., 257 A.D. 841, 12 N.Y.S.2d 81, 1939 N.Y. App. Div. LEXIS 8109 (N.Y. Ct. App. 1939).

Pincite

Opinion

Order denying motion to treat an answer as a nullity on the ground that the same is sham and frivolous, and to strike out affirmative defenses as insufficient, modified by granting the motion to strike out the first and second affirmative defenses and, as so modified, affirmed without costs. The answer, by its denials, raises an issue as to whether or nor the assessment in question arose out of the same proceeding as that in which the assessment in Matter of Seidl v. Zauner (247 N. Y. 17) was declared void. We are unable to hold on the face of the pleadings alone that the denial is sham. The denial may be shown to be such upon the trial, or by virtue of a motion invoking the proper rule of Civil Practice. As to the separate defenses, our affirmance of the dismissal of the action for declaratory judgment was limited to a refusal to interfere with the discretion of Special Term in dismissing an action seeking a declaration that an assessment was void which, according to the allegations of the complaint in that action, had already been declared void. The defense would not constitute a bar to the present action to remove a cloud on title, particularly in the light of the fact that it is asserted, although not expressly alleged in the complaint, that the Charter of the City of New Rochelle was amended after the dismissal of the action for declaratory judgment, so as to provide that a transfer of tax lien be presumed to be regular and valid. (Scott v. Onderdonk, 14 N. Y. 9, 14.) Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.

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Order denying motion to treat an answer as a nullity on the ground that the same is sham and frivolous, and to strike out affirmative defenses as insufficient, modified by granting the motion to strike out the first and second affirmative defenses and, as so modified, affirmed without costs. The answer, by its denials, raises an issue as to whether or nor the assessment in question arose out of the same proceeding as that in which the assessment in Matter of Seidl v. Zauner (247 N. Y. 17) was declared void. We are unable to hold on the face of the pleadings alone that the denial is sham. The denial may be shown to be such upon the trial, or by virtue of a motion invoking the proper rule of Civil Practice. As to the separate defenses, our affirmance of the dismissal of the action for declaratory judgment was limited to a refusal to interfere with the discretion of Special Term in dismissing an action seeking a declaration that an assessment was void which, according to the allegations of the complaint in that action, had already been declared void. The defense would not constitute a bar to the present action to remove a cloud on title, particularly in the light of the fact that it is asserted, although not expressly alleged in the complaint, that the Charter of the City of New Rochelle was amended after the dismissal of the action for declaratory judgment, so as to provide that a transfer of tax lien be presumed to be regular and valid. (Scott v. Onderdonk, 14 N. Y. 9, 14.) Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.

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Bluebook (online)

257 A.D. 841, 12 N.Y.S.2d 81, 1939 N.Y. App. Div. LEXIS 8109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stuart-realty-co-v-municipal-investors-inc-nyappdiv-1939.

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