57 A.D.2d 614 | N.Y. App. Div. | 1977
In a mortgage foreclosure action, defendants Lewis Lubitz and Putnam C. C., Inc., appeal from an order of the Supreme Court, Putnam County, entered September 23, 1976, which denied their motion to dismiss the complaint as against them upon various of the grounds set forth in CPLR 3211 (subd [a]). Order affirmed, with $50 costs and disbursements. The doctrine of res judicata does not bar this action against defendant Lubitz. The previous action brought against him by plaintiffs, which resulted in a discontinuance with prejudice, sought to enforce an agreement by Lubitz to purchase an assignment of the mortgage. The action now brought by plaintiffs seeks foreclosure and a deficiency judgment on the bond and mortgage itself. The outcome of the prior action did not affect plaintiffs’ rights with regard to the bond and mortgage. Appellants also contend that Sam Schwartz is a necessary party plaintiff to this action. We find that contention to be without merit. Sam Schwartz, the husband of plaintiff Selma Schwartz, assigned his interest in the subject mortgage to Selma Schwartz and that assignment was duly recorded. All of his interest was, therefore, vested in his wife, who is a proper party plaintiff. The fact that Sam Schwartz handled the business matters relating to the mortgage for his wife does not serve to make him a necessary party plaintiff. Hopkins, Acting P. J., Margett, Damiani and Rabin, JJ., concur.
