Smigel v. Sylvester

The defense attacked under rule 109 of the Rules of Civil Practice alleges that Sebastian Smigel agreed to purchase an assignment of the bond and mortgage in question ■for $300; that he examined the receiver’s accounts showing the rents of the property; and that the balance in the receiver’s hands, amounting to $81.35, was credited to the assignee as part of the payment for the assignment of the mortgage.

As an individual, Smigel had no right to the balance of the funds in the hands of the receiver. From the facts alleged, it may, therefore, be inferred that in applying the balance to the purchase of the mortgage Smigel was acting as representative of the distributees of the estate and not as an individual.

The transaction as pleaded by defendants is sufficient as a pleading and should not. have been stricken.

*436The orders appealed from should be reversed, with $20 costs and disbursements to the appellants, and the motion to strike out the defense denied.

Martin, P. J., Untermyer, Dore, Cohn and Callahan, JJ., concur.

Orders unanimously reversed, with $20 costs and disbursements, and the motion to strike out the defense denied.