Frank R. Biedler, Appellant, v. Richard L. Malcolm, Respondent, Impleaded with Anna Enricht and Others, Defendants

Frank R. Biedler, Appellant, v. Richard L. Malcolm, Respondent, Impleaded with Anna Enricht and Others, Defendants. Second Department, July 9, 1907. Foreclosure—pleading — answer—prior assignment — failure of consideration — usury— separate defense must be complete in itself. In an action of foreclosure by the assignee of a mortgage the answer of a defend-ant claiming under a prior assignment, alleging that at the time the plaintiff took his assignment he had knowledge of the prior assignment, states a good defense. But a separate defense alleging that the consideration for the plaintiff’s assignment failed, unaccompanied by any allegation showing that the defendant had any interest in that question, is subject to demurrer.- Reither is it a defense to allege that the mortgage was assigned to the .plaintiff « as security for a usurious loan when there is- no allegation showing any interest of the defendant therein, for a stranger cannot attack a transaction for usury. Resort cannot be had to other parts of an answer in aid of a separate and distinct defense, which must contain every allegation essential to make it a complete defense or counterclaim. Appeal by the plaintiff, Frank R. Biedler, from an interlocutory judgment of the Supreme Court in favor of the defendant Malcolm, entered in the office • of the clerk of the county of Kings on the. 29'fch day of December, 1906, upon the decisión of- the court, rendered after a trial at' the - Kings 'County Special Term, overruling the plaintiff’s demurrer to the answer of the said defendant. Isaac W. Goodhue [Andrew C. Troy with him on the brief], for the appellant. Terry Parker, for tie respondent, [MAJORITY — Miller, J.:] Miller, J.: The plaintiff appeals from an interlocutory judgment overruling a demurrer to three, separate and distinct affirmative defenses alleged -in the respondent’s- answer, two of Which are also pleaded as counterclaims. The ground, of the demurrer is that as defenses they are insufficient in law upon the face .thereof, and that as counterclaims they do-not allege facts-’Sufficient to constitute a.cause of. action. The plaintiff as assignee of the mortgage sues to obtain foreclosure.' The complaint makes no reference to said respondent but he was permitted to intervene and interpose- an answer. The first defense and counterclaim demurred to alleges a prior ' assignment to said respondent of the mortgage sought tó be' foreclosed.,, and-notice thereof to the plaintiff at the time of thé alléged assignment to him and the demurrer to it was, therefore, properly overruled: . The second alleged affirmative defense demurred to merely "contains an allegation of a failure of' consideration- for the assignment. to the plaintiff, but as it contains no allegation showing that the respondent lias any. interest in that question, the demurrer to it .should have been. sustained. The third' defense and counterclaim "demurred to alleges that said mortgage was' assigned to-the plaintiff' as security for a usurious loan, but that fails to contain any allegation showing the' interest of said defendant, and it is well settled that a stranger cannot, attack a.transaction for usury. ' ¡Resort cannot be had to othenparts of the answer in aid of a separate and distinct defense, but it must contain every allegation essential to make out a defense or counterclaim as the case may be. For this reason the demurrer to the second separate defense and to the third separate defense and counterclaim should have been sustained. The judgment should be modified accordingly. Hirschberg, P. J., Woodward, Jeuks and Gaynor, JJ., concurred. - Interlocutory judgment modified in accordance with opinion of Miller, J., and as modified affirmed, without costs.