American Guild v. Damon

24 Citing cases

  1. Alpaugh v. Battles

    235 App. Div. 321 (N.Y. App. Div. 1932)

    In the case of a defendant who may be jointly and severally liable, a very different situation is presented, and it may well be that in such a case a defendant severally liable would be permitted to set up a cause of action existing in his individual favor. In the opinion in the Fox Chase Knitting Mills, Inc., case, the reliance is chiefly upon two New York cases, namely, American Guild v. Damon ( 186 N.Y. 360) and Parsons v. Nash (8 How. Pr. 454). Both of the cases mentioned upon which the decision in the Fox Chase Knitting Mills, Inc., case was based were cases of joint and several liability on the part of the defendant.

  2. Iroquois Door Co. v. Leavenworth Apartment Co.

    77 Misc. 462 (N.Y. Sup. Ct. 1912)

    Under the statute the maker and the indorsers of the note in question are jointly and severally liable on the instrument, though sued as jointly liable. In the recent case of American Guild v. Damon, 186 N.Y. 360, it was held that, in an action to foreclose a mortgage executed by a husband and wife to secure the payment of their joint and several bond, the husband might, under section 501 of the Code of Civil Procedure, counterclaim and set off a claim existing in his own favor, and the allowance thereof inured to the benefit of both defendants, and the fact that the action is in form joint does not affect the principle. In this very action the Leavenworth Apartment Company has interposed an answer setting up substantially the same facts alleged in the answer of the defendants Roberts and Stanley, save that in the answer of the apartment company the claim for damages is set up as a counterclaim rather than as an offset.

  3. Tavitoff v. Stepovich

    91 F.2d 106 (9th Cir. 1937)

    Although the appellee did not name his answer as pleaded a counterclaim, he did designate it as an affirmative defense and concluded it with a prayer for a judgment granting the desired relief. It was thus recognizable as a counterclaim. See National Bank of Rochester v. Erion-Haines Realty Co., 213 App. Div. 54, 209 N.Y.S. 522; American Guild of Richmond v. Damon et al., 186 N.Y. 360, 78 N.E. 1081. The rule that the defendant in his answer should clearly indicate that affirmative allegations are intended as a counterclaim is to prevent the plaintiff from being misled by the failure to so designate it and thus to fail to reply to such affirmative allegations. See Babcock v. Maxwell, 21 Mont. 507, 54 P. 943. No such situation is presented in the case at bar.

  4. In re Levine

    23 B.R. 410 (Bankr. S.D.N.Y. 1982)   Cited 2 times

    It has long been the law of New York that the assignee of a mortgage takes subject to any defenses existing in favor of the mortgagor which existed against the mortgagee/assignor. Beck v. Sheldon, 259 N.Y. 208, 181 N.E. 360 (1932); American Guild of Richmond, Virginia v. Damon, 186 N.Y. 360, 78 N.E. 1081 (1906); Davis v. Bechstein, 69 N.Y. 440 (1877); Ingraham v. Disborough, 47 N.Y. 421 (1872). As the court stated in Trustee's of Union College v. Wheeler, 61 N.Y. 88, 104 (1874):

  5. Foley v. Equitable Life Assurance Society

    49 N.E.2d 511 (N.Y. 1943)   Cited 8 times

    The surrender of the policies is unnecessary for the protection of the defendant. Since it is not possible on a new trial to alter the facts determining the liability of the defendant the judgment should be modified in accordance with this opinion with costs to appellant in this court and in the Appellate Division. ( Freel v. County of Queens, 154 N.Y. 661, 665, 666; Heerwagen v. Crosstown Street Ry. Co., 179 N.Y. 99, 106; American Guild v. Damon, 186 N.Y. 360, 364.) The order of the Appellate Division should be reversed and the judgment of the trial court modified in accordance with this opinion, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Division.

  6. Elliott v. Brady

    85 N.E. 69 (N.Y. 1908)   Cited 35 times
    In Elliott v. Brady (supra), where the defendants stood in the relationship of sureties to the maker of the note, the court said (p. 226): "A party when sued upon his obligation cannot avail himself of an independent cause of action existing in favor of his principal against the plaintiff as a defense or counterclaim. It is for the principal to determine what use he will make thereof and the surety has no control over him in this respect."

    A party when sued upon his obligation cannot avail himself of an independent cause of action existing in favor of his principal against the plaintiff as a defense or counterclaim. It is for the principal to determine what use he will make thereof and the surety has no control over him in this respect. ( Lasher v. Williamson, 55 N.Y. 619; Gillespie v. Torrance, 25 N.Y. 306; Newton v. Lee, 139 N.Y. 332; American Guild v. Damon, 186 N.Y. 360.) It cannot be claimed by the appellants that the written contract was executed by Paine as their agent and that they are the real principals though not named in the instrument.

  7. Thelma Sanders Associates, Inc. v. Roth

    140 A.D.2d 513 (N.Y. App. Div. 1988)   Cited 1 times

    Although the plaintiff is correct in its contention that its submission of the loan agreements and mortgage made out a prima facie case of nonpayment, we reject the plaintiff's contention that the defendants failed to carry their burden of proof to show payment because they did not submit a written satisfaction of the mortgage. In this case, satisfaction of the debt was established by sworn testimony (see, American Guild v Damon, 186 N.Y. 360; Banks v Goodliffe, 60 Hun 586, 15 N.Y.S 466; Mayo v Davidge, 51 Hun 644, 4 N.Y.S 77). Once the plaintiff admitted that the properties were transferred in connection with the mortgage at issue, the issue before the court was whether the transfer was intended to satisfy the indebtedness. Faced with conflicting versions of events, the court resolved the credibility issue in favor of the defendants and found that the transfer was intended to satisfy the indebtedness.

  8. Granick v. Mobach

    13 A.D.2d 534 (N.Y. App. Div. 1961)   Cited 13 times

    In our opinion, the answering affidavits raise a triable issue. The counterclaim is properly interposed and the damages, if any, established on the trial may be offset to the amount of the plaintiff's demand (Civ. Prac. Act, §§ 266, 267). Plaintiff took the assignment of the bond and mortgage subject to all defenses and counterclaims which defendants had against the assignor ( Liebowitz v. Arrow Roofing Co., 259 N.Y. 391; American Guild v. Damon, 186 N.Y. 360), and, consequently, as against defendants the plaintiff acquired thereby no rights greater than those of his assignor ( Stevenson Brewing Co. v. Iba, 155 N.Y. 224). Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.

  9. Railroad Waterproofing Corp. v. Memphis Sup., Inc.

    277 AD 898 (N.Y. App. Div. 1950)

    The lien is no less valid as a defense merely because the action in replevin was brought by the vendor's assignee. ( American Guild v. Damon, 186 N.Y. 360, 364; Rapps v. Gottlieb, 142 N.Y. 164; Hill v. Hoole, 116 N.Y. 299, 302; Briggs v. Langford, 107 N.Y. 680; Crane v. Turner, 67 N.Y. 437; Sherwood v. Fincke Co., 196 A.D. 97.) Neverthless, we are unable to grant appellant any affirmative relief in view of its failure to demand that it be awarded possession of the vehicle, and its failure, to establish a case of conversion. (See Civ Prac. Act, § § 1119, 1124; Hoffman v. Hoffman, 266 A.D. 724; Levy v. Hohweisner, 101 A.D. 82; Angel v. Hollister, 38 N.Y. 378; Yates v. Fassett, 5 Denio 21; Brady v. Beadleston, 62 Hun 548, and Shepherd v. Moodhe, 8 Misc. 607.)

  10. Fox Chase Knitting Mills, Inc., v. Handal

    232 App. Div. 498 (N.Y. App. Div. 1931)   Cited 1 times

    In Loring v. Morrison ( 15 App. Div. 498) the court held that a surety who signs in form as a joint maker with his principal a note given in payment for chattels, is entitled in an action against him thereon, to recoup the damages sustained by his principal because of a breach of the warranty under which the chattels were sold. Chief Judge CULLEN, writing for the court, in American Guild v. Damon ( 186 N.Y. 360), stated that the fact that in form the action was joint did not affect the principle involved. When the defendants in an action are jointly and severally liable, although sued jointly, a counterclaim, consisting of a demand in favor of one or some of them, may, if otherwise without objection, be interposed. (Pom. Code Rem. [5th ed.] § 637; Tilden v. Washburn, 6 N.Y. Supp. 556; Seaman v. Slater, 49 Fed. 37, 40.)