156 N.Y.S. 808 | N.Y. App. Div. | 1916
This action was brought for the foreclosure of a purchase-money mortgage given by the defendant to Milton W. Hazelton for $6,709.85 covering real property situated in the city of Oneonta, M". T. The answer set up three counterclaims aggregating about $13,000. As the first counterclaim the defendant alleges that said Hazelton, in September, 1913, and prior to being adjudged incompetent, conveyed to the defendant the mortgaged property by deed containing covenants of warranty and of quiet enjoyment, “ Subject to such rights as one Lloyd Spencer may have, if any, under a lease made by said Hazel-ton to said Spencer bearing date of October 23,1909, and expiring December 1, 1914,” and also subject to three mortgages aggregating $11,300; that thereafter and in December, 1911, said Hazelton leased the said premises, reserving the top floor, to said Spencer for the term of fifteen years, for the yearly rental of $1,700; and that by reason of said leasings the defendant has not been permitted to occupy and enjoy said premises or to receive the rents and profits thereof, in accordance with said covenants, to his damage in the sum of at least $10,000.
As the second counterclaim the defendant alleges that prior to the time of being adjudged to be incompetent, said Hazel-ton in writing agreed that if the defendant or the holder of said three prior mortgages should deem it advantageous to foreclose said mortgages for the purpose of securing a perfect title, or to relieve the property from the incumbrances of certain existing leases executed by said Hazelton, said Hazel-ton would hold the defendant or the holder of said mortgages
As the third counterclaim the defendant alleges that it was agreed between Hazelton and the defendant at the time of the purchase of the property by. the defendant that the defendant should make an effort to have the fifteen-year lease canceled, and that in the event of his failure to do so, the defendant should be repaid all his expenses incurred in such effort, together with all sums of money paid by the defendant on account of the purchase price, and in addition thereto the sum of $2,000 as liquidated damages; and that the defendant expended on such effort $1,500, no part of which or of the liquidated damages had been repaid him, but constitute a just and proper offset against the plaintiff’s demand.
It appears by an affidavit of defendant’s attorney, verified September 6, 1915, and submitted by the defendant, that both the plaintiff and said Hazelton stated to the affiant that they lived in Oalifornia, and wanted to go back there, and that said Hazelton has no property except the mortgage being foreclosed, and some investment in a Oalifornia real estate company, which probably would not produce anything. While it is claimed by the plaintiff that she and said Hazelton are residents of the city of Oneonta, said Hazelton, in his affidavit of December 9, 1913, states his residence to be Los Angeles, Oal., and his age as eighty-seven years.
The order should be reversed, and Us pendens restored, with ten dollars costs and disbursements to the appellant.
All concurred; Smith, P. J., not being a member of the court at the time of the decision; Cochrane, J., not sitting.
Order reversed, and Us pendens restored, with ten dollars costs and disbursements to appellant.