Warner v. Billings

Appellate Division of the Supreme Court of New York

Warner v. Billings

53 N.Y.S. 805, 33 A.D. 641

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

DecidedOctober 7, 1898

StatusPublished

Cited by1 cases

This text of 53 N.Y.S. 805 (Warner v. Billings) 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

Warner v. Billings, 53 N.Y.S. 805, 33 A.D. 641 (N.Y. Ct. App. 1898).

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Opinion

PER CURIAM.

1. The motion to dismiss the appeal from the order and from the judgment should be denied. There is a conflict in the affidavits used upon the motion. The appellant in her affidavit says she never authorized the delivery of the agreement signed by her.

2. The motion made by the defendant for a continuance of the stay of proceedings should be denied. There is no further occasion for a stay.

3. The order striking out the answer should be reversed. The answer contains allegations of a tender of the amount due upon the mortgage, and alleges that it was made before suit was commenced by service of the summons and complaint upon the appellant. The answer was proper in form, so far as the tender was concerned; and if the facts are established at the trial as alleged, and the amount of the tender brought into court, the same should be considered in an equity action, as bearing upon the right of the plaintiff to maintain the action, as well as upon the discretion to be exercised as to the costs.

We think the order of June 27, 1898, should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. The judgment should be set aside, with disbursements to the appellant.

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PER CURIAM.

1. The motion to dismiss the appeal from the order and from the judgment should be denied. There is a conflict in the affidavits used upon the motion. The appellant in her affidavit says she never authorized the delivery of the agreement signed by her.

2. The motion made by the defendant for a continuance of the stay of proceedings should be denied. There is no further occasion for a stay.

3. The order striking out the answer should be reversed. The answer contains allegations of a tender of the amount due upon the mortgage, and alleges that it was made before suit was commenced by service of the summons and complaint upon the appellant. The answer was proper in form, so far as the tender was concerned; and if the facts are established at the trial as alleged, and the amount of the tender brought into court, the same should be considered in an equity action, as bearing upon the right of the plaintiff to maintain the action, as well as upon the discretion to be exercised as to the costs.

We think the order of June 27, 1898, should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. The judgment should be set aside, with disbursements to the appellant.

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Bluebook (online)

53 N.Y.S. 805, 33 A.D. 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-billings-nyappdiv-1898.

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