p. 392the respondents he discharged from liability to either party ; and that Louisa T. Milman, within ten days from the payment of said money into court, execute and deliver a satisfaction of said mortgage, duly acknowledged, to the respondents ; and it was therein further ordered, that if the said Louisa did not appear and defend said action within twenty days thereafter, the appellant should be at liberty to apply for an order that said money so deposited be paid over to her.
Ho written assignment by Louisa T. Milman of the said mortgage appears to have been executed or recorded.
On appeal, the general term modified the .order, by directing the respondents, as a condition of the substitution, to pay to the appellant’s-attorneys the costs of the action up to the time of tlie motion,, but in other respects affirmed the original order.
From this order of the general term appeal was taken by Mrs. Tauton to the court of appeals.
A motion to dismiss the appeal was made, in the court of appeals, on the ground that the order was not appealable"; and was denied.
It appeared below, that the motion had been made after the service of the summons and complaint in the action, and before the time to answer had expired.
The appellant objected, both at special and at general term, that Louisa T. Milman’s affidavit, setting forth her right to the money due on the mortgage in question, was not served on the appellant’s attorney.
A. J. Parker, for the plaintiff, appellant.
I. Affidavits which have not been served cannot be used to support a motion (Rule 49; 4 Abb. N. Y. Dig., 89, 90.II. The motion was premature. It is controlled by the practice in the old court of chancery (Washington Life Ins. Co. v. Lawrence, 28 How. Pr., 435 ).III. Ho such order as the one appealed from was asked for in the moving papers. It is the duty of the
p. 393prevailing party to see that the order confoims to the decision (Savage v. Relyea, 3 How. Pr., 276 ; S. C., 1 Code R., Willard, J.). No notice of motion was served upon the attorney for the plaintiff, as is recited in the order. The defendants cannot have more than what they ask for in the order to show cause. The particular grounds of a motion should appear plainly, either by notice of motion or the affidavits" (Ellis v. Jones, 9 How. Pr., 296 , Gridley, J.; Bowman v. Sheldon, 5 Sandf., 660 , Duer, J.; Bailey v. Lane, 13 Abb. Pr., 354 , Gen. Term, 1st Dist.). In the case of Mann v. Brooks, 7 How. Pr., 457 , 458, this court says: “ Relief has sometimes been granted on a notice as general as this, but I am inclined to believe that it would tend to prevent surprise, if the court would not listen to a prayer until the petitioner has discovered, and is able to give notice of, what he wants” (Cady, J.).
IY. Neither, section 118 nor 122 of the Code is applicable to. a case like this. They apply only to some actions on contract, and to those for the recovery of specific real property or specific personal property. This is an action for relief, and not such an one as is referred to in those sections. The remedy of Louisa T. Milman (the assignor), if any, is to sue the estate for the bond and mortgage, or money represented by them, not by giving verbal notice to the defendants not to pay the money- to the plaintiff (see Code, § 129; Wilson v. Duncan, 11 Abb. Pr., 3 , Superior Ct., Gen. T.); Kelsey v. Murray, 18 Abb. Pr., 294 ; S. C., 28 How. Pr., 243 , Ingraham, J.; United States Trust Co. v. Wiley, 41 Barb., 467 , Gen. T., 1st Dist.; Judd v. Young, 7 How. Pr., 79 , Shankland, J.; Tallman v. Hollister, 9 How. Pr., 508 , Strong, J.; Dayton v. Wilkes, 5 Bosw., 655 , Bosworth, J:; Hornby v. Gordon, 9 Bosw., 656 , Monell, J.; Trigg v. Hitz, 17 Abb. Pr., 436 , Gen. T., 1st Dist.).Y. The court will not, in an action like this, allow new parties (defendants) to be substituted against the
p. 394will of the plaintiff. The assignor having parted with her interest, her presence is no more necessary to the determination of the action than is that of a former owner of the property. She cannot satisfy the mortgage, because she has no right to receive the money (Sawyer v. Chambers, 11 Abb. Pr., 110 , Ingraham, J.); Freeman v. Newton, 3 E. E. Smith, 250, Glen. T.).VI. The affidavits of the moving party are insufficient, they should show: 1. That the defendants have served notice in writing upon this claimant. 2. That she has made her claim of them in writing. 3. Should admit or show a right in two or more claimants, and who they are, and what their claims are. 4. Should state that time for answering has expired. 5. Should state the defendants are quite indifferent as to the result. 6. That the defendants claim no beneficial interest in the subject. 7. That they have not by'their own acts placed themselves in a position to be sued. 8. Should state on what the claims of the claimant rest; or, 9. That the defendants are ignorant of them; or, 10. That the defendants do not know to whom they can safely pay the amount claimed. 11. Must show that the claimant is ready and willing to be substituted as the defendant, and must state her pecuniary responsibility so as to.be able to pay costs ( 2 Barb. Ch., 120 , 121, 573; Wilson v. Duncan, 11 Abb. Pr., 7 , Superior Ct. Glen. T.; Sherman v. Partridge, 1 Abb. Pr., 256 ; S. C., 11 How. Pr., 154 , Duer, J.; Vosburgh v. H untington, 15 Abb. Pr., 254 , Mullen, J.; Atkinson v. Manks, 1 Cow., 691 , 703; 2 Whitt. Pr., 3 ed., 16, 17, and cases cited; Lund v. Savings Bank, 20 How. Pr., 461 , Hogeboom, J.; affirmed, 37 Barb., 129 ; S. C., 23 How. Pr., 258 , Glen. T., 1st Dist.; Marvin v. Ellwood, 11 Paige, 365, 374; Fletcher v. Troy Savings Bank, 14 How. Pr., 383 ; Lund v. Savings Bank, 37 Barb., 129 ; S. C., 23 How. Pr., 258 ). Where the controversy arises under a written instrument its exact provisions should
p. 395be given by the moving party (1 Whitt. Pr., 3 ed., 952, cases cited).VII. Here was a valid and equitable assignment- of the bond and mortgage by'the mortgagee to the testator, though not in writing; and therefore Louisa T. Milman has no interest in the bond and mortgage, and should not be made a party (Green v. Hart, 1 Johns., 580 ; Johnson v. Hart, 3 Johns. Cas., 322 ; Jackson v. Willard, 4 Johns., 42 ; Runyon v. Mersereau, 11 Id., 534; Dawson v. Coles, 16 Id., 54; Prescott v. Hull, 17 Id., 292; Briggs v. Dorr, 19 Id., 96; Ford v. Stuart, 19 Id., 344; Gould v. Ellery, 39 Barb., 163 , Gen. T., 1st Dist., opinion by Ingraham, J.; Voorhies' Code, 9 ed., 112; Hastings v. McKinley, 1 E. D. Smith, 277, Gen. T.).VIII. The’ testator having purchased this bond and mortgage of the mortgagee, and paid the full value for them, and she having delivered them to him who owned a,nd held them at the time of his death, the plaintiff, on producing them in court, has a right to recover upon them against the present defendants, without joining or substituting others (James v. Chalmers, 6 N. Y. [2 Seld.], 209; Gould v. Ellery, 39 Barb., 163 , Gen. T., 1st Dist., opinion by Ingraham, J.; Mottram v. Mills, 1 Sandf., 37 ; Freeman v. Newton, 3 E. D. Smith, 250, Gen. T.).IX. The order appealed from should be reversed with costs and disbursements in the court below and of both appeals to be paid either by the respondents or the mortgagee..Dennis McMahon, for the defendants, respondents.
—I. The order of the special term in question was entirely discretionary, and cannot be impeached here., Even if it could ; yet,II. The plaintiff’s answer to the motion, as well as the answer of Louisa T. Milman, showed the necessity of the interpleader to protect the defendants. If, upon
p. 396the hearing, the question between the defendants is ripe for decision, the court should decide it; if not, it should direct an issue (Will. Eq. Jur., 322).III. The order to show cause prayed for further order as to the court might seem just. The whole of the papers of both the plaintiffs and defendants, as well as the affidavit of Louisa T. Milman, were made the basis of the order finally made, and these make one of the clearest cases for such an order.IV. On the whole case it appeared that the defendants held the funds in the suit for the true owner, and only desired that the question should be determined between the claimants, without costs or vexation to them, and that they were ready to pay the amount into court,, which they did {Code, § 122).V. The- order was made at the proper stage of the action, and should be affirmed.This order, as modified •by the general term, was both just and right. The, action was to foreclose a mortgage made by defendants to Louisa T. Milman, and claimed to be held by plaintiff as part of the assets of her trust. The execution and validity of the mortgage were not denied. It was admitted to be due, and the mortgagors did not wish to control or delay its payment. On the contrary, they had the money, and were anxious to satisfy and discharge the mortgage. But the mortgagee still claimed the mortgage as her property, and the money due upon it as due to her. She declared that she had never parted with her title .to it, and had notified the defendants of this, and forbidden them to pay it to the,plaintiff. The plaintiff had found the instrument among her testator’s effects, but there was no written assignment attached, and none could be found to verify the testator’s title.
Under this state of facts, the defendants procured the order appealed from.
p. 397The Code, §
122, provides, that
“a, defendant, against whom an action is pending upon a contract, &c., may,, at any time before answer, upon affidavit that a person not a- party to the action, and without collusion with him, makes a' demand against him for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, &c.; and the court may, in its
discretion, make the order.”
This order was based upon an affidavit of the defendants, entitled in the action, setting forth that said mortgagee has made demands upon them for the payment to her of the amount due on said mortgage, and has notified them not to pay said mortgage to any person but her, and claims that she is the sole and lawful owner of the said mortgage, and that said claim or demand was made without any collusion or understanding between said Louisa and defendants, or either of • them : also, upon an affidavit of their attorney, that no answer to the action had been put in, and that he knew, of his own personal knowledge, that Louisa T. Milmanhad claimed, and now claims, that said mortgage is her property, and. that no other person has any interest in the same: also, affidavits of service of notice of this application upon said Louisa T. Milman and the plaintiff’s attorney : also, the affidavit of said Louisa T. Mil-man, that said mortgage is her sole and exclusive property ; that she never assigned, or agreed to assign the same, or any interest therein, nor ever received any consideration for any assignment thereof: also, the summons and complaint; and also, upon the affidavit of the plaintiff’s attorney, in opposition, that said Louisa T. Milman did, in 'April, 1863, sell and assign to plaintiff’s testator said mortgage, and the bond accompanying the same.
These affidavits gave the special term jurisdiction in
p. 398the matter of the application, and the-allowance of the order was in its discretion. It is so declared by the Code; and being discretionary, it most likely was not the subject of review. I am, therefore, of the opinion that the appeal should be dismissed.
If, however, the order is appealable, it should be affirmed. Its justice to the defendants is too transparent .to require illustration. They make no contest; •they admit the obligation,- and that it is past due, and desire to pay it. The contest is between others for the money. The instrument is not negotiable. One claimant is the payee named in the mortgage, without possession ; the other is the possessor of the mortgage, without any other evidence of title. The only matter in dispute is the ownership of the mortgage. In that the defendants have no interest. It is asserted, that sustaining this order will produce litigation and complication between mother and daughter. But that is a matter this court cannot consider. It is not an element in the case. The Code, § 122, provides for protection to a defendant; and if a case is presented showing him entitled to the benefit of its provisions, in the discretion of the' court below, this court cannot review it because it may produce complication between the several claimants of the fund.
On the merits, the order should be affirmed.
Order affirmed with costs.