United States Life Ins. v. Gage — 3 N.Y.S. 398

Majority

p. 398

United States Life Ins. Co. v. Gage et al.

(Supreme Court, Special Term, New York County.

July 25,1888.)

Headnote

jl. Mortgages—Foreclosure—Action for Deficiency—Leave to Sue.

On a sale in partition between heirs a part of the price was deposited for pay- . ment of decedent’s debts, for which the realty might be liable. Held, that an action to apply the fund to the payment of a deficiency judgment in mortgage foreclosure could not be brought without leave of the court in which the foreclosure was brought; Code Civil Proc. N. Y. § 1628, providing that, pending or after final judgment for plaintiff in an action to foreclose a mortgage on land, no action shall be commenced to recover any part of the mortgage debt without leave of the court in which the former action was brought.

-2. Pleading—Complaint—Leave to Sue.

In an action which can be brought only by leave of court the complaint must allege that leave has been obtained.

On demurrer to the complaint.

Action by United States Life Insurance Comnany against Eleanor P. Gage .and others. The complaint alleged that Cornelius Poillon died intestate, leaving insufficient personalty to pay his debts, owing plaintiff and others; that his heirs sued for partition of his realty, and obtained a sale of it; that some .of the purchasers refused to take title, unless a part of .the proceeds sufficient to pay decedent’s debts should be deposited with the United States Trust Company to be used for the payment of such debts; and that $20,000 were deposited with that company to pay debts for which the real estate might be liable, or could be sold or applied; and prays that plaintiff be paid out of the fund; .and, if its share is sufficient, that it have judgment for the balance against the heirs to the extent of their inheritance. Defendant Gage demurs to the .complaint. Another demurrer was passed upon in the case mentioned in the opinion. By Code Civil Proc. H. Y. § 1628, “while an action to foreclose a mortgage upon real property is pending, or after final j udgment for the plaintiff therein, no other action shall be commenced or maintained to recover any

p. 399

part of the mortgage debt, without leave of the court in which the former action was brought. ”

Jay, Candler & Brush, for plaintiff. Wellesley G. Gage, for defendants.

When the complaint was before the general term it was there held that but one cause of action is set forth in the complaint, and that is a cause of action “to enforce a right given to the creditors of Cornelius Poillon, of which plaintiff is one, by his heirs at law, at the instance of purchasers at the partition sale, to be paid their debts out of certain moneys deposited for their benefit with the defendant, the United States Trust Company, which right is dependent upon the establishment of the claims against the heirsof Poillon, as such.” 15 H. Y. St. Rep. 242. The complaint alleging that the demand due from Poillon to the plaintiff consists of a judgment for a deficiency in an action for the foreclosure of a mortgage, section 1628 of the Code applies; and as this is an action other than an action to foreclose the mortgage, and is brought to recover a part of the mortgage debt, it cannot be commenced without leave of the court in which the former foreclosure action was brought. Leave of the court was therefore necessary before the action could be maintained.

I have concluded to follow the decision of the presiding justice in the case of Hauselt v. Fine, 18 Abb. N. C. 144 , where he held that a complaint was deficient which did not allege that leave of the court had been obtained. The demurrer must be sustained, and judgment ordered for the defendant, with costs; with leave to plaintiff to amend its complaint on payment of one bill of ■ costs to the defendant Eleanor P. Gage, she being the only person who has raised this point.