Majority
p. 880WOOD v. HARPER et al. (Supreme Court, General Term, Second Department. March 5, 1895.)
Headnote
Pleading—Complaint—Single Cause of Action.In an action to foreclose a mortgage, allegations that the owner of the equity of redemption conveyed part of the mortgaged premises to defendant, that defendant retained out of the purchase money a sum sufficient to discharge the mortgage, that the grantor then assigned to plaintiff his claim for the unpaid purchase money, though not necessary averments, do not set up an independent cause of action, which plaintiff will be required to separately state and number.
Appeal from special term, Suffolk county.
Action by Philip Wood against Orlando M. Harper and another to foreclose a mortgage. From an order denying a motion to compel plaintiff to make his complaint more definite and certain by separately stating and numbering the several causes of action therein set forth, defendants appeal. Affirmed.
The complaint alleged that one Charles McCaffrey gave the mortgage to Hewlett Scudder; that afterwards Scudder assigned it to Elizabeth H. Cook, who assigned it to plaintiff; that after the date of the mortgage, and before the assignment to Elizabeth Cook, Charles McCaffrey, who had in the meantime become seised of the premises as trustee, conveyed a part thereof to defendant Orlando M. Harper; that defendant deducted from the purchase money expressed in the deed the sum of $1,000, which was the amount due on plaintiff’s mortgage, and retained the same in his hands to meet the lien of the said mortgage; that afterwards Charles McCaffrey, as trustee, assigned to plaintiff the sum of $1,000, part of the unpaid purchase money retained by said defendant on the sale to him; that all the property covered by the mortgage had been raised from the lien thereof, except the portion conveyed by the said Charles McCaffrey to said defendant. The prayer for judgment was that defendants, and all persons claiming under them, or either of them, subsequent to the commencement of this action, may be barred and foreclosed of all right, claim, lien, and equity of redemption in such part or parts of said mortgage or premises as were so sold and conveyed by the said Charles McCaffrey, as trustee, to said Harper, and that the said premises may be decreed to be sold according to law, and that the money arising from the sale be brought into court; that plaintiff may be paid the amount due on his mortgage, with interest, and for such other and further relief as shall be just and equitable.
Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ. Stedman & Larkin, for appellants.
John H. Stoutenburgh, for respondent.
This is an appeal from an order of the special term . denying defendants’ motion to direct the plaintiff to separately state and number the several causes of action stated in the complaint. We think that there is but one cause of action stated;' ■that is, for the foreclosure of a mortgage. The allegations of the complaint in reference to the conveyance by an owner of the equity of redemption of a part of the premises mortgaged to the defendant Harper, the retention by that defendant out of the purchase money of a sum to discharge the plaintiff’s mortgage, and the assignment by the grantor in such conveyance of his claim for the unpaid portion of the purchase money are averred only to show that the portion of the mortgaged land sought to be sold in this action is in
p. 881
equity primarily liable for the mortgage debt. The judgment prayed for asks only the sale of these premises, and out of the proceeds of sale the satisfaction of the plaintiff’s mortgage. The allegations above referred to, as to the conveyance to the defendant Harper, may have been unnecessary to support or establish the plaintiff’s cause of action. But nevertheless they are to be in no sense considered as stating an independent cause of action. The defendants’ motion was therefore properly denied. The order appealed from should be affirmed, with |l0 costs and disbursements. All concur.