208 Misc. 658 | N.Y. Sup. Ct. | 1955
On this motion by certain defendants to dismiss the complaint in pursuance of subdivision 2 of rule 107, subdivision 5 of rule 107 and rule 212 of the Buies of Civil Practice, I shall briefly state the facts as disclosed by the pleading and the affidavits.
In 1924 the defendant Adele Freund was the owner in fee of certain premises in the Bronx. In that year she executed and delivered to Matilda Freund, her mother-in-law, a bond in the sum of $10,000 secured by a mortgage on these premises. The principal of the bond was payable on demand with usual interest.
The defendants Freund move for dismissal of the complaint on the following grounds: (1) that since the assignment to the plaintiff was not accompanied by physical delivery to the plaintiff of the bond and mortgage, the plaintiff does not have title to the bond and mortgage and therefore has no legal capacity to sue and no standing to maintain an action on the bond and mortgage (Rules Civ. Prac., rule 107, subd. 2). (2) That any claim which the plaintiff may have has been outlawed by the Statute of Limitations (Rules Civ. Prac., rule 107, subd. 5). (3) That the court, in the exercise of its discretion, should decline to entertain this action for a declaratory judgment, in that such action is not necessary nor can it serve any useful purpose, as the plaintiff, if it has any cause of action at all, can secure adequate relief by recourse to other existing forums and actions (Rules Civ. Prac., rule 212). I find no merit in the motion or in any of its phases.
The application to dismiss the complaint on the alleged ground that the plaintiff lacks legal capacity to sue rests upon a mis
I shall assume for present purposes that, by this branch of their motion, the moving defendants intended to attack the complaint — and seek to have it dismissed — upon the ground of legal insufficiency in that the plaintiff fails to show due assignment of the bond and mortgage. Even on the basis of this premise, the motion must be denied. For it is adequately asserted by the plaintiff — in complaint and affidavit — that it does have title to the bond and mortgage or, at the least, the right thereto. Certainly in the circumstances pleaded and proved here, the contention that the plaintiff does not have the right to title — merely because the delivery of the assignment, unaccompanied as it was by physical delivery of the bond and mortgage, is ineffectual to pass title — is not a matter that can be disposed of summarily on the present submission. ££ A delivery of the bond and mortgage to defendant was not essential to vest title to the same in defendant. Neither was * * * [defendant] required to assert ownership of the same by demanding possession thereof from plaintiffs.” (Davin v. Isman, 228 N. Y. 1, 8.)
The third ground for dismissal, that, in pursuance of rule 212 of the Eules of Civil Practice, the court in its discretion should refuse — even before trial — to entertain this action for declaratory judgment, is also overruled. Some of the issues involved could perhaps be raised in a foreclosure action brought by the plaintiff, and if the present owners of the fee were in default in the payments due on the mortgage, foreclosure would probably be a useful action to bring. But the defendants Luciano and Pintarelli have no interest in the controversy between the other litigants — indeed, they have defaulted in the present action. It is to be remembered that the defendant Eugene is receiving payments from the owners (or at least so the complaint alleges) and that he claims to be entitled to them as against the plaintiff. In these circumstances, it is proper for the court to exercise its discretion and entertain the action for a declaratory judgment. The parties are in dispute over a lien — in short, over who has and is entitled to the lien. When there are conflicting claims or doubtful questions relating to title to real property or the rights and liabilities under a mortgage are to be determined, actions for declaratory judgments are effective and. properly maintainable (Borchard on Declaratory Judgments [2d ed.], 139, 140, 595, 597; 2 Anderson on Declaratory Judgments [2d ed.], § 500).
The defendants’ motion to dismiss the complaint is denied, with leave to answer. Order signed. .