Weber v. Schwarz

12 N.Y. St. Rep. 621

Opinion

Dykman, J.

This is an action to foreclose a mortgage upon real property executed by Theodore Schroff to Paul Weber, deceased, the intestate of the plaintiff.

Theodore Schroff, the mortgagor, conveyed the property to George Rathstein, subject to the mortgage in suit and another mortgage, and Rathstein assumed the payment of the mortgage by an appropriate clause in the deed of conveyance to him, and the amount of the two mortgages constituted a part of the purchase-money of the property.

The defendant, Anton Schwarz, is the present owner of the property having received the same from Rathstein, but the papers before us fail to show any assumption of the payment of this mortgage by him.

He has- answered the complaint in this action and the first paragraph of his answer contains these words: “That in the deed by which this plaintiff acquired title, it was expressly covenanted and agreed by this defendant’s grantor, that said premises are free from the hen and incumbrance of said alleged mortgage, and Theodore Schroff,. the mortgagor in the mortgage in the complaint alleged, has expressly covenanted to this defendant that said mortgage is null and void by reason of the following: ”

That portion of the answer was struck out by the court on motion of the plaintiff and the defendant has appealed from the order.

The original motion was entirely unnecessary, because the plaintiff could have been in no way embarrassed by the averment in the answer. Even if any testimony had been admitted under it upon the trial it would have been entirely nugatory and inoperative.

Yet that was a reason for striking out the allegation when the motion was made. The fact set up constituted no-defense to the action, and was, therefore, immaterial.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Dykman, J., concur.