Reports of Practice Cases Determined in the Courts of the State of New York Vo

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Reports of Practice Cases Determined in the Courts of the State of New York Vo
Abbott, Austin, 1831-1896
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If illegal testimony be received, and may have had weight with the jury, on a material point, the court has no dis- cretion to refuse a new trial. (Weeks a. Lowerre, 8 JBarb. , 530 ; Main a. Eagle, 1 K D. Smith, 619. ) Niles & Bagley, for the respondent. I. The matter set up in the answer does not constitute any defence. No claim is made against King ; he, therefore, can have no counter-claim of which he can avail himself. The parties have no cross- demands, one of which may cancel the other. (...Van Yalen a. Lapham, 13 How. Pr. , 240 ; Spencer a. Babcock, 22 Barb. , 326. ) II. The right of the plaintiff to claim, and the right of the defendant to counter-claim, must be reciprocal. (Xenia Branch Bank a. Lee, 2 osw. , 694 ; S. C. , 7 Abbotts' Pr. , 372. ) III. The action to foreclose a mortgage is not an action on contract, within the meaning of that section of the Code refer- ring to counter-claims.
IY. If King can set up a counter-claim, so can twenty other defendants who may have some interest in the property, or the surplus, or some liability on account of the mortgage.


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