Opinion
July 9, 1907.
Isaac W. Goodhue [ Andrew C. Troy with him on the brief], for the appellant.
Terry Parker, for the respondent.
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 to be foreclosed, and notice thereof to the plaintiff at the time of the alleged 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 has 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 other parts 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, JENKS and GAYNOR, JJ., concurred.
Interlocutory judgment modified in accordance with opinion of MILLER, J., and as modified affirmed, without costs.