Post v. Banks

73 N.Y.S. 596 | N.Y. App. Div. | 1901

Hirschberg, J.:

The parties are brother and sister. They own á piéce of real estate in common, an ordinary city house and lot, each owning an undivided half. The defendant has a past-due mortgage on the plaintiff’s share. On August 14, 1901, this action was commenced for a partition sale of the property, and thé summons and complaint were personally served upon the defendant. The defendant duly appeared by attorney and procured extensions of time from the plaintiff’s attorneys, the last one being procured on September 17, 1901, and extending her time until October 14, 1901. The following day, viz., September 18j 1901, the summons and complaint were served upon the plaintiff in an action brought by the. defendant to foreclose her mortgage upon the plaintiff’s undivided share. The mortgage security is ample and no other liens exist. The order appealed from stays the proceedings in the foreclosure suit until the determination of the partition action.

The power of the court in the premises is undoubted. (Jackson v. Schauber, 4 Cow. 78; Matthews v. Shaffer, 19 Wkly. Dig. 456 ; Gibson v. Am. Loan & Trust Co., 58 Hun, 443; Third Ave. R. R. Co. v. Mayor, 54 N. Y. 159 ; Schuehle v. Reiman, 86 id. 270 ; Norfolk & New Brunswick Hosiery Co. v. Arnold, 143 id. 265.) In Dolbeer v. Stout (139 N. Y. 486) it was held that one action should not be stayed by an order granted in another action where-the party against whom the stay is sought is neither a party, nor privy, to such other action, and would not be bound by an adjudication therein, but the court said (p. 489) that “ where the decision in one action will determine the right set up in another action, and the judgment on one trial will dispose of the controversy in all the actions, a case for a stay is presented.”

The appellant’s counsel cites no case to the contrary. It is true that in Bradford v. Downs (24 App. Div. 97) an order similar to the one now under consideration was reversed, but in that case the mortgagee was not a party to the partition suit, and the. foreclosure suit had proceeded to judgment before the stay was granted. The court divided upon the question of the propriety of the stay, but appears to have been united on the question of power.

The power existing, I think it was properly exercised herein in limiting the parties to the expense and vexation of a single suit, the first one instituted, in which every question suggested in the record may be litigated and the rights of the parties finally determined. A sale in the foreclosure suit will necessarily be confined to the mortgaged interest and will not avoid the necessity of a subsequent sale under the partition suit. The case is quite within the jurisdiction of equity to prevent an unnecessary multiplication of suits, and no tenable ground or reason is suggested against the action of the Special Term.

The order should be affirmed.

Goodrich, P. J., Bartlett, Woodward and Sewell, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.