142 N.Y.S. 131 | N.Y. App. Div. | 1913
The defendant corporation appeals from an interlocutory judgment that overrules its demurrer that this complaint, in
The contention of the defendant corporation, appellant, is that it appears on the face of the complaint that there are two owners of the bond and mortgage — namely, the plaintiff and the defendant Otis — that at the time of the election by the plaintiff to call the entire principal sum, such sum had not become due according to its terms, save by breach of the said conditions as to payment of an installment of interest and the taxes, and that the plaintiff alone could not so elect, but that Otis must join in election. It appeared on the face of the complaint that prior to the beginning of this action Otis had refused plaintiff’s request to join with the plaintiff and, therefore, was made a party defendant.
Such an election may be made by an assignee of the mortgagee as if by the mortgagee. (Wiltsie Mort. Fore
The cases cited by the learned counsel for the appellant (Shaw v. Wellman, 59 Hun, 447; Cresco Realty Co. v. Clark, 128 App. Div. 144, and Getty, Inc., v. Cauchois, 141 id. 443) may be discriminated in that in each of these cases the assignor and assignee, or those in similar relation, stood before the court as joint owners of the obligation and, therefore, the election of one owner would not suffice. Daniels, J., in Shaw v. Wellman (supra) cites only the authority of Marine Bank v. International Bank (9 Wis. 57). In that case the reason is well expressed by Oole, J., “that the mortgagor did not agree that the mortgagees, or their assigns, might elect to have a part of the principal sum become due on his failure to pay, within thirty days, any moneys secured by the mortgage. He agreed that in such a case, at their option, the entire sum might become due and collectable. * * * it was, therefore, not competent for the International Bank, to which a part only of the mortgage debt belonged, to exercise the election, without the co-operation of the Marine Bank.” But the said agreement between Otis and the plaintiff as assignee of the title
The defendant need not apprehend two judgments of foreclosure at the instance of the plaintiff and of Otis respectively. Otis is made properly a party defendant, her rights may be finally determined in this action so far as the defendant is concerned, and in this respect it is immaterial whether she be made a party plaintiff or defendant. (Simson v. Satterlee, 64 N. Y. 657.)
The interlocutory judgment must be affirmed, with costs of this appeal, with leave to the defendant to plead within twenty days upon payment of costs.
Burr, Carr, Rich and Putnam, JJ., concurred.
Interlocutory judgment affirmed, with costs of this appeal, with leave to defendant to plead within twenty days upon payment of costs.