32 N.Y.S. 730 | N.Y. Sup. Ct. | 1895
Many considerations urged by the appellants on appeal are again presented, no ment. The question now to be considered is the change in the status of the parties effected by the retaking and sale of the property of the New Netherlands Hotel, and the loss or deficiency resulting, to secure which it is claimed the mortgage on the Normandie was given. In this action plaintiff, among the other grounds of relief, asks to have the Normandie mortgage declared invalid, and for an injunction to restrain the foreclosure thereof. The fact that resort had not been first had to the property in the New Netherlands was one of the reasons for enjoining the defendants pendente lite. This, however, was not the sole ground. At the time defendants threatened to enforce the collateral mortgage on the property in the Normandie no default had occurred; and this, joined with other facts appearing, and notably the grounds urged against the validity of the mortgage, justified an injunction pendente lite upon condition of the giving of a bond fully to protect defendants, which was thereafter given. It was stated upon the argument, and not denied, that this case is at issue and will soon be reached for trial. Notwithstanding, it is insisted by defendants that they should be permitted to foreclose the Normandie mortgage by action. An independent action, however, is unnecessary, as defendants, upon proper allegations in their answer in this action, if successful in maintaining the validity of that mortgage and the right to enforce it, would obtain more speedily all the relief that could be obtained in a new suit now to be brought. If the supplemental answer is not sufficient, upon a proper showing, and upon such terms as are just, the court at special term would no doubt permit the necessary amendments. This, we think, upon the facts appearing, would have been the better course, because affording defendants, if successful, all the relief that could be obtained in an independent action in which the plaintiff would interpose, by way of defense, the very facts upon which she seeks in this action to have the mortgage declared invalid; and thus there would be two actions pending between the same parties in respect to the right to foreclose the same mortgage. A court of equity never favors multiplicity of suits. We think the order is right, and should be affirmed, with $10 costs and disbursements.