98 Misc. 342 | N.Y. Sup. Ct. | 1916
This action was brought to foreclose a mortgage upon the premises owned by the defendants Lichtenstein. The latter have interposed answers denying the material allegations of the complaint, and setting up two affirmative defenses and a counterclaim. The' first of these defenses, briefly stated, is to the effect that the parties hereto entered into an agreement whereby payment of the bond and mortgage sued upon was extended until February, 1921, and that this action is prematurely brought. The second is that there has been such part performance of the agreement by the parties that it would be inequitable to grant the relief sought by the plaintiff. The counterclaim is for a decree of specific performance directing the plaintiff to comply with the terms of the alleged agreement. The plaintiff has replied, denying the allegations of the affirmative defenses and the counterclaim. It has also set up in connection with such denials the Statute of Frauds, claiming that the alleged agreement was not in writing, and by its terms was not to be performed within a year. Defendants demur to the paragraphs of the reply which assert the Statute of Frauds. It is not necessary to base the decision herein upon technical grounds, such as were discussed in the recent case of Streeter v. Cloud, 171 App. Div. 572; as the demurrer must be overruled upon the merits. A consideration of the paragraphs demurred to shows that the pleader did not intend to set up the matter contained therein as a separate
Ordered accordingly.