Haaren v. Lyons — 30 N.Y. St. Rep. 416

Majority

p. 416

John W. Haaren, Resp’t, v. Jeremiah C. Lyons et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 14, 1890.)

Headnote

1. Foreclosure—Parties.

After a purchase money mortgage was assigned by the mortgagee, it was discovered that the premises were misdescribed. The mortgagee and wife then executed and delivered a new. deed and an agreement was made with the mortgagor correcting the mortgage and confirming it as an incumbrance. Meld, that the mortgagee had no further interest in the enforcement of the mortgage and was not a necessary or proper party to an action to foreclose the same.

p. 417

3. Same—Pleading.

A complaint alleging the making and delivery of the mortgage, the correction of the description and that part of the debt had become due and remained unpaid, together with the other formal allegations required for the purpose of foreclosure, is sufficient to present a cause of action.

Appeal from an interlocutory judgment overruling a demurrer to the plaintiff’s complaint.

John LarJcin, for app’lts; IT. H. Glass, for resp’t.

The action has been brought to foreclose a mortgage upon premises situated on the northerly side of One Hundred and Thirteenth street in the city of Hew York. This mortgage was executed and delivered by the defendant William 0. Bui-ne to Albert E. Smith, and it was afterwards, by an instrument in writing, assigned by Smith to the plaintiff. As the premises were described in the mortgage they were made to commence 570 feet westerly from the northwesterly corner of Fifth Avenue and One Hundred and Thirteenth street, while in fact the land intended to be described was distant 370 feet westerly from'this corner of the avenue and One Hundred and Thirteenth street. After this misdescription was discovered the mortgagee, together with his wife, executed and delivered a further deed to the mortgagor correcting this misdescription and locating the land as it in fact should have been described in the prior deed. And an agreement was then and there entered into between the mortgagor and Smith correcting the mortgage and confirming it as an incumbrance upon the property in this manner described. Ho further obligation, either legal or equitable, after that rested upon Smith arising out of this misdescription. But the mortgage was in fact from the time of its correction an executed incumbrance upon the property as it was correctly described. Smith had no further interest whatever in the enforcement of the mortgage. It could affect no rights still remaining vested in him, nor could it subject him to any further obligation than that which he had in this manner performed. And for that reason he was neither a necessary nor a proper party to the action brought by the plaintiff for the foreclosure of the mortgage.

The further ground taken in support of the demurrer is that the complaint did not state facts sufficient to constitute a cause of action. But it did set forth the making and delivery of the mortgage, its correction in the manner already stated, and that a part of the mortgage debt had become due and payable and remained unpaid. And these facts did entitle the plaintiff, as the assignee of the mortgage, to bring this action for its foreclosure and the collection of the money secured by it. The other formal allegations required for that purpose were added to the complaint in addition to the statement of these facts. And it did accordingly present a cause of action for the foreclosure of this mortgage. And this further objection contained in the demurrer was accordingly without any foundation.

p. 418

The judgment is well supported by the facts appealing in the complaint, and it should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.