Merrill v. Bischoff — 3 A.D. 361

Majority

p. 361

Samuel D. Merrill, as General Guardian, etc., of Irene C. Merrill and William J. Merrill, Respondent, v. Henry Bischoff, Appellant, Impleaded with Others.

Headnote

Foreclosure—a prior assignor of the mortgage is a proper pa/rty—if his answer, admitting the assignment, is stricken out, it should not he with costs.

A prior assignor of a mortgage is a proper, but not a necessary, party to its foreclosure.

Where such, an assignor answers and admits the assignment, this is an advantage to the person foreclosing the mortgage, and if the answer of the assignor is stricken out as frivolous, the court should not award the plaintiff costs against him.

Appeal by the defendant, Henry Bischoff, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of February, 1896, overruling the answer ■ of the defendant Henry Bischoff as frivolous and directing judgment of foreclosure and sale in favor of the plaintiff.

Ira Leo Bamberger, for the appellant.

John Brunnemer, for the respondent.

The complaint demanded no relief against the defendant Henry Bischoff. It stated facts showing that he was the original mort

p. 362

gagee to whom the bond and mortgage- were delivered j that subsequently he- entered into an agreement with the defendant Herman Reiners,- to whom the property had been conveyed, whereby he extended the time for the payment of the moneys secured by the mortgage; and that still later, and on or about the 18th day of December, 1894, by a deed of assignment bearing date on that day, he “ duly assigned said mortgage, together with said bond or obliga-, tion, to this plaintiff, and therein covenanted that the sum of $3,000, with interest thereon from November 1, 1894, was unpaid and owing thereon.”

There is no other allegation in the complaint in reference to the appellant. .

By his answer, the defendant Henry Bischoff admitted that he assigned and transferred the bond and mortgage as alleged in the complaint. It was doubtless the object of the plaintiff, in making him a party, to procure this admission, either expressly in the answer or by the failure of the defendant- Bischoff to plead at all.' For- this purpose he was a proper party to the action, although not a necessary party. His admission of the allegation that he had assigned and transferred the bond and mortgage as alleged in the complaint left him without any defense to the plaintiff’s cause of action, and .the court at Special Term was, therefore, right in holding that the answer’ constituted no obstacle to the rendition of judgment in favor of the plaintiff. We are of the opinion, however, that the order should not have awarded any costs to the plaintiff, inasmuch as the answer was a benefit instead of an injury to him.

, Order affirmed, except the provision as to costs, which is reversed. No costs of appeal. ■

All concurred.

Order affirmed, except the provision as to costs, which is reversed. No costs of appeal.