11 Abb. N. Cas. 369 | N.Y. Sup. Ct. | 1882
This is amotion for judgment as to the first alleged defense set up in the answer, on the ground that it is frivolous ; and to strike out the second alleged defense on the ground that it is false, hence, sham; and for general relief.
The action was brought to foreclose a mortgage, made July 18, 1861. The complaint contained all the usual and formal averments made in an action for foreclosure. The defendants, Fitzgerald, were made parties defendant, under the general averment, that they, John Fitzgerald and Edmund Fitzgerald, had or claimed to have some interest in or lien upon the mortgaged premises, or some part thereof, subsequent to the lien of the plaintiff’s mortgage.
The Fitzgeralds answered the complaint, and set up
As a second defense they briefly and formally set up a pending suit between the same parties for the same cause of action set forth in the complaint in this action.
No defense going to the merits is interposed. The sole defense is matter in abatement of the suit. Let us now consider the subject of the motion ; and, first, a motion for judgment as to one defense on the ground of its frivolousness, and to strike out another because false and sham; both being set forth as affirmative defenses, and the only defenses interposed, maybe joined in one application. The motion, in this regard, is well conceived. Now, is the first alleged defense frivolous ? Is it groundless on its face ? The action is for the foreclosure of a mortgage dated July 18,1861. The alleged defense is this: that the defendants, the Fitzgeralds, as subsequent mortgagees under a mortgage dated April 19, 1869, had, prior to the commencement of this suit, commenced an action to foreclose their mortgage; had made the plaintiff herein a party defendant in that action, and that such action was still pending undetermined. There was no averment of any equity in their favor against the enforcement of the prior mortgage. The legal position sought to be maintained is this: that a subsequent mortgagee may institute an action to foreclose his mortgage; make a prior mortgagee a party defendant, and prevent the latter from enforcing his mortgage by suit to foreclose it; or, to state the posi
This question was again considered in Emigrant Industrial Savings Bank v. Goldman (75 N. Y. 127), where Judge Churoii says: “It is settled that the only proper parties to a bill of foreclosure, so far as mere legal rights are concerned, are the mortgagor and mortgagee, and those who have acquired rights under them subsequent to the mortgage’ and the learned judge cites several cases in support of this position; and he adds : “ Those parties only, are affected Toy the judgment,” referring to the provision of the statute which declares the effect of a judgment and sale on foreclosure. The learned judge cites the Eagle Fire Co. v. Lent (6 Paige, 635), and, by the citation as an authority, makes the case the same on principle, as it would be had the subsequent mortgagee made a prior lienor a party defendant in his foreclosure suit and assailed the validity of such prior lien. All the cases hold that this cannot be done (see also Payn v. Grant, 23 Hun, 134).
So it was distinctly held in the cases cited that a subsequent mortgagee could not make a prior incumbrancer by mortgage a party to his suit for foreclosure, and have a foreclosure of such prior mortgage in his suit, relying simply and only on his legal right to foreclose his own mortgage. Any other, doctrine would be strange indeed. The subsequent' mortgagee
It is suggested that this conclusion is in hostility to the decision of Mr. Justice Westbrook on demurrer to the complaint in Fitzgeralds’ action ; but I do not understand that Judge Westbrook held or intended to decide that the Fitzgeralds might set up the pendency of their suit to defeat a foreclosure by the plaintiff of his prior mortgage. If Judge Westbrook so decided, I think it would be in direct hostility to the decisions by the court of appeals in the cases above cited.
This conclusion does not dispose of the question presented on the application for judgment on the formal answer of pending suit, on the ground that it is false and sham. On this point there is first a question of fact to be settled. Is the answer of pending suit, interposed in this case, false in fact ? This is an affir
But there is another ground of support for the plaintiff’s application. At the time of the commencement of this action by the senior mortgágee, there was no action pending by any one for the foreclosure of such prior or senior mortgage. As is conceded, the only suit then pending was one by the junior mortgagees the Fitzgeralds, to foreclose that mortgage in which they had made the plaintiff here (the prior mortgagee) a party defendant, wherein they assailed the validity of such prior mortgage, and asked to have it canceled. It was not an action to foreclose this mortgage, but was, in so far as it was intended to affect .that mortgage, an action for its cancellation. But it was held on demurrer to the complaint that even this action was not maintainable against the prior mortgagee. So there was no action, nor pretense of an action, to foreclose the plaintiff’s senior mortgage, pending when this action was commenced. That the Fitzgeralds
I conclude that plaintiff’g motion should be granted.