Opinion
December 30, 1915.
David W. Kahn, for the appellant.
Isaac Reiss [ Thomas H. Ray with him on the brief], for the respondent.
This is an action to foreclose a mortgage held by the plaintiff by virtue of various assignments originating from the original mortgagee. The mortgage was for $2,500. It came to one Martha Stutchbury. She assigned an interest of $2,000 in the bond and mortgage to one Schulze, who in turn assigned the same interest to the plaintiff. Martha Stutchbury assigned likewise to the Halley Land and Improvement Company an interest in the same bond and mortgage, to the extent of $500. This latter corporation became merged with "Annex Homes of New York City, Inc.," which latter corporation became insolvent and is now represented in this action by the defendant and appellant Parodi, as trustee. The theory of the plaintiff is that his interest of $2,000 in the bond and mortgage is prior in right to that of the insolvent corporation. The complaint sets forth specifically both assignments from Stutchbury, but contains no allegation as to an intent or purpose to make priorities between the assignees of interest in the same bond and mortgage. Its thirteenth allegation is that the Halley Land and Improvement Company has or claims "to have some interest in or lien upon said mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequent to the lien of said mortgage and is subsequent and subordinate thereto." There is no specific denial in the answer of this thirteenth allegation. The defendant Parodi claims all the interest in the mortgage which the Halley Land Company got through the assignment from Stutchbury, and asks that the judgment make provision for paying him the $500 on an equal plane with the plaintiff. I think the thirteenth allegation of the complaint is not sufficient to cut off the defendant Parodi, in view of the earlier allegations. It is worded awkwardly, and might well appear to refer to some other interest or claim or lien which Parodi may have, exclusive of the $500 interest in the bond and mortgage which is being foreclosed. In any event, it was not proper, on a motion of this character, to receive evidence of matters dehors the pleadings themselves. The plaintiff made a part of its motion papers the assignment from Stutchbury to Schulze. In deciding the motion the learned court at Special Term evidently considered this instrument, and construed its legal effect.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
JENKS, P.J., THOMAS, MILLS and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.