9 N.Y.S. 586 | N.Y. Sup. Ct. | 1890
The principal question presented by this appeal is whether a county court of the proper county has jurisdiction to reform the condition of a bond, secured by a mortgage of real estate, as incidental to an action to foreclose such mortgage, under the power of sale which it contains. The defendant pleaded a tender, shortly before the commencement of the action, of the amount which he admits to have been then due on the bond, according to its terms; and his counsel argues that by reason of such tender the plaintiff could have no cause of action for the foreclosure of the mortgage until after the reformation of the bond, and therefore that the reformation of the bond was not incidental to the foreclosure of the mortgage, but was itself the chief and primary object of the plaintiff’s action. It is not necessary to consider whether this argument is sound because there is no finding that any tender was made, nor any request for such a finding, and there is no evidence upon which the fact could have been found. The only evidence relating to a tender is that of the witness Maltby, who testified that he was the assignee, for the benefit of the creditors, of the defendant Langford. He was asked: “As such assignee, did you tender, either by yourself or other, and were you present at the time of the tender to Mr. Wade .of, $190?” to which he answered, “Yes, sir.” Who was the Mr. Wade here mentioned, and for whom or on what account a tender was made to him, is not explained. There is nothing to connect Mr. Wade with the plaintiff, nor the tender with the plaintiff’s cause of action. We have the case, then, of a mortgage securing a bond upon which a balance is conceded to be due and unpaid. The plaintiff had therefore a cause of action for the foreclosure of her mortgage. The question is whether she may have in the same action, in the county court, reformation of the condition of the bond which is necessary in order to ascertain what is the amount due, according to the contract actually made between the parties. We can have no doubt upon this question. By express provision of the statute, (Code Civil Proc. § 340,) the jurisdiction of each county court extends to an action for the foreclosure of a mortgage upon real property situated within the county. And section 348 provides that in such action the county court “may render any judgment, or grant either party any relief, which the supreme court might render or grant in a like case. ” This language is very comprehensive, and it is, we believe, conceded that it embraces every kind of relief which may properly be said to be incidental to the foreclosure, even though such relief might be made the subject of an independent action. Such was the view of the court in the two cases of Avery v. Willis, 24 Hun, 548, and Thomas v. Harmon, 46 Hun, 75. Both of those eases were held to be not within the rule, because the reformation there asked for was not incidental to the action of foreclosure. In the former case reformation of the mortgage itself was asked for to locate the land conveyed, without which the mortgage created no lien on any piece of land, and no foreclosure could be had; and the proceeding to obtain the reformation was held to be primary in purpose and importance. In the latter case the reformation asked for was also of the mortgage itself, and would have the effect to extend its lien to land not at all embraced in the conveyance as executed. Both cases are clearly distinguished from this. The reformation here decreed does not affect the lien of the mortgage, but only the amount of interest which the plaintiff was entitled to recover. A cause of action for the foreclosure of the defendants’ equity of redemption, in the whole of the land embraced in the judgment, existed without the reformation of the bond. The decree in the latter respect only determined the period for which interest was to be computed. We think this relief was strictly incidental, secondary, and ancillary to the proceeding to foreclose the mortgage, and that it was clearly within the jurisdiction of the county court, as defined by section 348 of the Code, supra. The evidence in support of the allegation
