77 N.Y.S. 202 | N.Y. App. Div. | 1902
The plaintiff seeks to foreclose a certain mortgage. The defendant Richardson demurs on the ground that there is a non-joinder of parties defendant. The rule is well established that a defendant can demur for want of parties only when he has an interest himself in another’s being made a defendant (6 Ency. of Pl. & Pr. 311; Anderton v. Wolf, 41 Hun, 571, and authorities there cited; Bauer v. Platt, 72 id. 326., 332), and, as the complaint does not show a demand for a deficiency judgment, it is difficult to understand what interest the defendant Richardson has in bringing in the person who was the owner of the premises, subject to the mortgage, at the time of the commencement of this action. It does not appear upon the face of the complaint, or upon the public records, that there was an owner of the premises, or any person having an interest in them, other than the defendants named in the complaint, and the mere fact that the plaintiff may have known of an unrecorded transfer does not, Where this fact does not appear on the face of the pleadings; give the defendant any ground for demurrer. (See Code Civ. Proc. § 488.) Section 452 of the Code of Civil Procedure appears to have provided for a case of this kind, so that there is no difficulty in affording a remedy for any one who has an interest in the controversy, and the defendant Richardson’s rights are in no wise prejudiced by the absence of the alleged owner of the premises as a party defendant.
Action No. 1, in so far as the-question here involved is concerned, is identical with action No. 2 under the same title, and it does not appear necessary to further discuss either case.
The interlocutory judgments appealed from should be affirmed, with costs.
All concurred.
Interlocutory judgments overruling the demurrers of the defendant Richardson affirmed, with costs.
