| N.Y. App. Div. | Jan 10, 1913
The complaint herein sets forth that on October 17, 1911, at the city of New York, the defendant Wishart, for value received, made his certain promissory note in writing, whereby he promised to pay to Alexander Stein on the 17th day of April, 1912, the sum of $20,000, with interest, and that simultaneously therewith, for a valuable consideration, he executed, acknowledged and delivered to: plaintiff an instrument in writing whereby said Wishart undertook to secure the payment of certain obligations and therein and thereby plaintiff was appointed trustee for the benefit of the defendants herein with the powers, and duties therein set forth. Copies of said note and instru.ment are annexed to the complaint. It is then alleged that on January 20, 1911, Wishart, for value received, made another promissory note in writing whereby he promised to pay to Alexander Stein the sum of $20,000, in one year from said dató, and delivered same to Stein and that no part has been paid. It is further alleged that the first mentioned note was not paid, and that Stein required plaintiff ■ to take proceedings under the conditions of the note, by ' which the trustee was given power to realize upon the collateral deposited under the agreement referred to, by proper proceedings at law or in equity, the security being given to secure payment not
The amended answer of Wishart denies but one allegation of the complaint, viz., the “ sixth” before quoted, and further sets up another action at law pending between the same parties upon the promissory note dated January 20, 1911, but which action is brought by Alexander Stein against George Wishart. The denial raises no issue. The presence of the allegation in the complaint was superfluous, for this action affects bnly personalty. In any event the allegation was non-issuable, and the denial thereof is not sufficient to require a trial of the issue. (Riesgo v. Glengariffe Realty Co., 116 A.D. 414" court="N.Y. App. Div." date_filed="1906-12-21" href="https://app.midpage.ai/document/riesgo-v-glengariffe-realty-co-5201154?utm_source=webapp" opinion_id="5201154">116 App. Div. 414.) The other action pending, which is pleaded as a bar to this, .is not between the same parties; it is not upon the identical cause of action, nor does it seek nor can it afford the same relief.
The amended answer then proceeds to set up a separate and distinct defense by way of offset upon averments that Stein being a joint owner with Wishart, Costigan and Godfrey of the mine in question, a purchaser was obtained therefor who was willing, able and ready to pay $165,000 therefor, subsequently raising his offer to $200,000 in the event of a sale, at which price Wishart would have realized about $80,000 as his share, but that Stein refused to sell, saying the mine was worth at least $500,000, by reason of which the sale was lost, as it required the consent of all the owners to sell
For a further and distinct defense the amended answer then (still without any denials of the allegations of the complaint) sets up that Wishart, Stein and one Whitney, being the owners of the stock of a Canadian corporation known as the Welch Mine, Limited, agreed to raise the balance of the purchase price. of the mine and the money required for its development, and that Stein offered to contribute $40,000 • thereto, provided Wishart and Whitney would deliver to him their respective notes for $20,000' each, secured by the stock owned by them. It is further alleged: “Twelfth. That defendant and said Whitney thereupon abandoned their intention to sell their stock and did each make his note to said Stein for Twenty thousand ($20,000) dollars and did deliver the same to said Stein upon the expressed condition that said Stein would hold said notes until the sale of the control of said company then in his possession and that said Stein would thereupon satisfy said notes with interest from the proportionate part of the proceeds of said sale, accounting to the defendants and Whitney for any surplus and would not seek to enforce.said notes in any other manner unless after such sale a deficiency should arise. That defendant and said Whitney at the time of said conditional delivery of said notes, delivered to said Stein all their stock in said corporation as collateral security for said notes.” It is then set forth that Stein bought Whitney’s stock from him by the return of his note but refused to buy Wishart’s stock,, although requested, and that Stein has not sold the control of the corporation, ánd,
Inasmuch as defendant has not attempted either in his original or amended answer to deny any of the averments of the complaint, and the defenses which he has sought to interpose are insufficient in law, there seems to be no necessity for giving the defendant leave to plead anew.
The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and judgment directed in favor of plaintiff upon the pleadings, with ten dollars costs.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.