224 A.D. 867 | N.Y. App. Div. | 1928
Order denying motion to strike out matters contained in the defense and counterclaim, to treat the answer as a nullity, and to direct judgment accordingly reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Affidavits were properly used by the plaintiff, appellant, under rule 104 of the Rules of Civil Practice, to establish that the defense was sham. However, the burden of establishing that the defense and counterclaim were sham under this rule, was upon the plaintiff. We are of opinion that the facts upon which the defendants, respondents, rely do not constitute duress, and, therefore, do not constitute a defense, nor state a counterclaim. Even if they did, the execution of the bond and the mortgage under foreclosure was subsequently fully ratified and confirmed by defendants, respondents. Not only was the first installment of principal and interest paid, but the mortgage was carried as a liability by the defendant corporation upon its books, and so reported to the United States Government in its income tax report for the year 1927. Lazansky, P. J., Rich, Kapper, Hagarty and Carswell, JJ., concur.
