19 N.Y.S. 946 | N.Y. Sup. Ct. | 1892
The complaint alleges that Maurice E. Townsend and Edward ÍT. Townsend, together with John P. McEwan, were, on the 18th of January, 1889, partners in the lumber business; that Maurice E. Townsend gave the mortgage in question to induce the plaintiffs to give credit to the firm on lumber, and to secure payment of any balance due the plain tiffs on the 1st of April, 1890; that on the 1st of January, 1890, the debt was $17,711.72, represented by two notes of $5,000 each, and an open account for the balance; that at that date Maurice E. Townsend and Edward ÍT. Townsend were the sole partners, having assumed all the debts of McEwan & Co., and they applied for an extension of credit on their debt; that it was agreed to change the form of the debt; Maurice E. Townsend and Edward ÍT. Townsend gave a draft for $3,500, and their promissory note for $4,284.64, indorsed by the defendants Solomon Townsend and Robert Townsend; that these sums represented the open account of McEwan & Co.; that provision was made for renewal of the three notes upon certain payments, and that the mortgage should remain as security for the entire debt; that further credit was given to the partners Townsend, and Robert and Solomon Townsend indorsed the notes; that the notes were protested for nonpayment. The complaint clearly shows a mortgage given by Maurice E. Townsend to secure the plaintiffs for goods sold a firm of which he was a member; that the debt is unpaid; and that Solomon Townsend and Robert Townsend are indorsers upon notes given for a portion of the debt. A good cause of action is set forth against Maurice E. Townsend and Edward RT. Townsend, as they are personally liable for the debt secured by the mortgage. The indorsers on their notes, Solomon Townsend and Robert Townsend, are proper parties, because they are liable to the plaintiffs for the payment of the debt, or some part of it, secured by the mortgage. Code Civil Proc. § 1627. The order overruling the demurrer and interlocutory judgment thereon should be affirmed, with costs.