Merrill v. Bischoff — 73 N.Y. St. Rep. 685

Majority

p. 685

Samuel D. Merrill, as General Guardian, etc., Resp’t, v. Henry Bischoff, Impleaded, etc., App’lt.

(Supreme Court, Appellate Division, Second Department,

Filed April 14, 1896.)

Headnote

1. Mortgage—Foreclosure—Parties.

A mortgagee, who has assigned the debt and mortgage, is a proper, though not necessary, party to an action by the assignee to foreclose.

H. Same—Answer.

Where such mortgagee admits the allegation in complaint that he has assigned and transferred the bond and mortgage, such answer constitutes no obstacle to the rendition of judgment in favor of plaintiff,

3. Same—Costs.

No costs should be awarded to the plaintiff, on an answer admitting the assignment, where no relief is asked against him.

Appeal from an order in favor of plaintiff.

Ira Leo Bamberger, for app’lt; John Brunnemer, for resp’t.

The complaint demanded no relief against the defendant Henry Bischoff. It stated facts showing that he was the original mortgagee, to whom the bond and mortgage were delivered; that, subsequently, he entered into an agreement with the defendant Herman Reiners, to whom the property had been conveyed, whereby he extended the time for the payment of the moneys secured by the mortgage; and that, still later, and on or about the 18th day of December, 1894, by a deed of assignment

p. 686

bearing date on that day, he duly “ assigned said mortgage, together with said bond or obligation, to this plaintiff, and therein covenanted that the sum of $3,000, with interest thereon from November 1, 1894; was unpaid and owing thereon.” There is no allegation in the complaint in relerenoe to the appellant

By his answer, the defendant Henry Bischoff admitted that’ he assigned and transferred the bond and mortgage as alleged in the complaint. It was, doubtless, the object of the plaintiff, in making him a party, to procure this admission, either expressly ¡ in the answer, or by the failure of the defendant Bischoff to plead at all. For this purpose he was a proper party to the action, although not a necessary party. His admission of the allegation that he had assigned and transferred the bond and mortgage, as alleged in the-complaint, left him without any defense to the plaintiff’s cause of action ; and the court at special term was therefore right in holding that the answer .constituted no obstacle to the rendition of judgment in favor of the plaintiff. We are of the opinion, however, that the order should not have awarded any costs to the-plaintiff, inasmuch as the answer was a benefit instead of an injury to him.

Order affirmed, except the provision as to costs, which is reversed. ^ No costs of appeal