23 N.Y.S. 941 | N.Y. Sup. Ct. | 1893
The action was to foreclose a mortgage of real ■estate made by one Joseph Armbruster to Elizabeth Read, the mother of the plaintiff, since deceased. The answer of the defendant, Louis Knell, the owner of the property, pleaded payment of the mortgage in full, denied on information and belief that the plaintiff was the owner of the mortgage, and alleged facts tending "to show a defect of parties. The proof was that the plaintiff was duly appointed and acted as administrator of his mother’s estate; that, as such,, he assigned the mortgage for a nominal consideration to a friend, who, in turn, for a similar consideration, assigned it to him in his individual name. His mother left surviving her one daughter and himself as her sole next of kin, and no husband. The daughter died, before the assignment of the mortgage to the plaintiff, without issue. She was reputed to have been married, and a person claiming to be her husband presented a paper purporting to be her will to the surrogate of Erie county, by whom it was admitted to probate; but the decree was reversed by this court, and issues were awarded to be tried by a jury. Such issues were