Albany City National Bank v. Hudson River Brick Manufacturing Co.

Majority

p. 499

Albany City National Bank, Resp’t, v. Hudson River Brick Manufacturing Company, Impleaded, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed June 18, 1894.)

Headnote

Pleading—Complaint—-Demurrer.

A complaint in an action to foreclose a mortgage, which alleges that one of the defendants has or claims an interest in the mortgaged property, shows that he is a proper party.

Appeal from an interlocutory judgment overruling a demurrer to the amended complaint.

Lent & Herrick, for app’lt; Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.

—This is an appeal from an interlocutory judgment overruling a demurrer to the complaint The action is for the foreclosure of a chattel mortgage, and the allegation in respect to the brick company is that it has, or claims to have, some interest in the mortgaged property. The brick company demurred to the complaint on the ground, that it failed to state facts sufficient to constitute a cause of action against it. The statement already recited was sufficient to show that the brick company was a proper party to the action, and it is not necessary for us to determine the relief to which the plaintiff is entitled under that allegation. The defendant against whom it is made must protect its interest, and in case of failure to do so the complaint is sufficient to enable the plaintiff to take judgment of foreclosure and sale, as against all rights which are subordinate to the mortgage.

Our conclusion is that the judgment should be affirmed, with costs.