Fresenborg v. Reilly — 72 N.Y. St. Rep. 616

Majority

p. 616

Bernard Fresenborg, Resp’t, v. Hugh J. Reilly, App’lt.

(Supreme Court, Appellate Division, Second Department,

Filed Feb. 11, 1896. )

Headnote

1. Pleading—Mortgage—Foreclosure.

Where the complaint in an action to foreclose a mortgage given by an indorser of a note before delivery, alleges that the mortgagor expressly covenanted to pay the note, an allegation that the indorsement was made to give credit to the maker, is unnecessary.

2. Judgment—Foreclosure suit.

In the absence of a provision in the judgment in such action, providing: that the mortgagor shall be liable for any deficiency arising upon the sale of the mortgaged property, he has no cause for an appeal.

Appeal from a judgment in favor of plaintiff.

Browne & Sheehan, for app’lt; George H. Finck, for resp’t.

—This appeal is from a final judgment entered in an action to foreclose a mortgage upon real estate, and the notice-of appeal presents for review an intermediate order overruling a, demurrer taken to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges: (1) The making of a promissory note by Adeline Reilly, payable to the order of the plaintiff, which was, before its delivery, indorsed by the appellant, and, so indorsed, delivered, for a good consideration, to the plaintiff. (2) That thereafter the appellant, for the purpose of securing the payment of said note, duly execued and delivered to the plaintiff a mortgage upon the real estate-described in the complaint. That the said mortgage contained the following provison: “Provided, always, * * * .that the said party of the first part will pay the indebtedness as hereinbefore provided, and, if default be made in the payment of any part thereof, the party of the second part shall have power to self the premises herein described, according to law.” It further contained allegations of default in the payment of the note by the maker, and demand the payment thereof from the appellant, and refusal. The criticism made upon the complaint by the counsel for the appellent is that it was necessary for the plaintiff te allege that the appellant indorsed the" note in question for the purpose of lending credit to the maker, and that, in the absence of such an allegation, the legal presumption arising from the face of the note was that the appellant was a second endorser. We deem it unnecessary to express any opinion upon this question. Whether parol evidence would have been admissible to show the real purpose and intent of the indorser, in the' absence of an allegation to that effect, need not now be decided.

The complaint before ús contains an allegation that the appellant in the mortgage, expressly covenanted to pay the note. There was, consequently, a good cause of action pleaded, entirely outside of any question of liablity arising upon the note. But the judgment appealed from contains no provision adjudging the appellant to be personally liable for the debt, and there can be,.

p. 617

of course, no question but that the mortgage was enforceable against the property. In the absence of a provision in the judgment providing that the appellant shall be liable for any deficiency-arising from the sale of the mortgaged property, I am unable to . perceive what cause he has to appeal.

The judgment and order must be affirmed, with costs to be paid by the appellant personally.

All concur.