Metropolitan Savings Bank v. Tuttle — 261 A.D. 1058

Majority

p. 1058

The Metropolitan Savings Bank, Respondent, v. Friend L. Tuttle, as Surviving Executor of and Trustee under the Last Will and Testament of Angelo Ubriaco, Deceased, and Others, Appellants, Impleaded with Others, Defendants.

There was no default and no cause of action for the foreclosure of the mortgage when the complaint was served. That defect was not cured by a supplemental complaint alleging a default which occurred thereafter.

The order should be reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint and the supplemental complaint granted, without prejudice to the institution of a new action for the foreclosure of the mortgage.

Present — O’Malley, Townley, Glennon, Untermyer and Cohn, JJ.

Order unanimously reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint and the supplemental complaint granted, without prejudice to the institution of a new action for the foreclosure of the mortgage.