Majority
p. 14DAHL v. LEVENBERG. (Supreme Court, Appellate Division, Second Department. January 14, 1916.) Argued before JENKS, P. J., and THOMAS, CARR, MILLS, and RICH, JJ.
Headnote
1. Mortgages <@=432—Parties <S=35—Foreclosure—Defendants.All the owners of a mortgage, including the personal representatives of any deceased, should be united as plaintiffs in an action to foreclose, except that one whose consent cannot be obtained may be made defendant; the complaint stating the reason therefor,
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 1271; Dec. Dig. <@=432; Parties, Cent. Dig. §§ 54, 55; Dec. Dig. <@=35.]
2. Mortgages <@=451—Foreclosure—Complaint.
Complaint in mortgage foreclosure not stating, as required by Code Civ. Proc. § 1629, whether another action has been brought to collect any of the mortgage debt, and, if so, its result, is defective.
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 1315; Dec. Dig. <@=451J
<@c^For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Kings County Court.
Action by Minnie Dahl against Samuel Levenberg. From an order granting an interlocutory judgment, overruling demurrer to the complaint, defendant appeals. Reversed, and demurrer sustained, with leave.
Max Schleimer, of New York City, for appellant.
Louis J. Halbert, of Brooklyn, for respondent.
[1,2] No final judgment has been entered, but if, in view of the stipulation of the parties, the order may be deemed such, it should be reversed, without costs; and the demurrer sustained, with leave to plead over on payment of costs. There should be united as plaintiffs all the owners of the mortgage, including the personal representatives of any who may have died. If the consent of any one of such persons cannot be obtained, he may be made a defendant, “the reason therefor being stated in the complaint.”
The complaint is also defective on account of the failure to observe the requirement of section 1629 of the Code of Civil Procedure.