Sheedy v. Foster

Headnote

Sheedy v. Foster, 167 App. Div. 935 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department,

entered March 26, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This action was commenced to • foreclose a real property mortgage in the principal sum of $35,000 given by the defendants William George Foster and his wife, Maria Foster, the present appellant, to William J. K. Kenny. Kenny assigned the mortgage soon after its execution to the plaintiff Sheedy, as- collateral security for loans by Sheedy to Kenny in excess of the face amount of the mortgage. An absolute assignment of the mortgage was duly executed by Kenny and delivered to -Sheedy and was duly recorded. The default alleged in the complaint upon which foreclosure of the mortgage was demanded was the failure of the defendant William George Foster to pay installments of interest due upon the mortgage. Appellant contended that the complaint failed to set forth a cause of action for two reasons: In that there was no allegation of election to deem the mortgage due to Kenny, a joint owner of the mortgage debt, because of the default in payment of interest and taxes; and in that the complaint did not set forth a demand upon Kenny or his executor, Becker, to become a party plaintiff, and failed to state why Kenny (later his executor, Becker) was joined, not as a plaintiff, but as a defendant.