Opinion
No. 41/159.
07-05-1917
WIEBKE v. DE WYNOAERT.
Hugo Woerner, of Newark, for the motion. George E. Clymer, of Newark, opposed.
Suit by Friedrich Wiebke against Joseph E. De Wyngaert for deficiency after mortgage foreclosure. Application to strike out parts of answer. Objectionable paragraphs stricken out, and defendant given 10 days in which to file further answer.
Hugo Woerner, of Newark, for the motion. George E. Clymer, of Newark, opposed.
STEVENS, V. C. This is an application to strike out parts of an answer. The situation is this: The King-Marsac Company mortgaged to complainant, and then sold the mortgaged premises to defendant, who is alleged to have assumed payment of the mortgage. Complainant foreclosed. The decree adjudged $2,030 to be due on the mortgage debt. There was a sale on execution from which $500 was realized. Complainant now sues for the deficiency. His right so to sue was adjudged on the application to strike out the bill. The defendant, who as owner was defendant in the former suit, is concluded by the decree therein, as far as the decree extends. He cannot question the amount decreed to have been due, but he is not concluded from showing that he is not liable for the deficiency.
In view of the former adjudications the so-called first defense is stricken out, and also paragraphs 1, 2 and 10 of the second defense.
Paragraph 3 is ambiguous. The denial may relate to the fact of acceptance or to the written indorsement.
It is an elementary rule of pleading that if defendant answers he must answer fully. This rule has not been observed in the so-called fourth defense. The fraudulent representations relied on should have been set forth if they were other than the statement that the officers and agents of the corporation represented to the defendant that he would not be liable on his assumption unless he was the owner of the premises at the date of the maturity of the mortgage. The answer should have stated what the representations were, who made them, and by what authority. If the only misrepresentation was the opinion or unauthorized statement of some agent of the company as to the legal effect of the writing which defendantsigned, that was not a fraudulent representation made by the company.
Paragraph 1 of the third defense and the fifth defense are to some extent repetitions. The second is broader than the first if defendant relies upon two separate releases given at different times, he should have so stated. Paragraph 1 should be stricken out, and the so-called fifth defense may be amplified to correspond to the fact.
I know of no authority for dividing the answer into separate defenses like separate pleas at law, as defendant has done in this case. It can only lead to repetition and prolixity, and is not warranted by section 49 of the Chancery Act of 1915.
The objectionable paragraphs will be stricken out, and the defendant given 10 days in which to file a further answer.