Opinion
March 12, 1952.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Defendant, Chodikee Lake Farm-Camp, Inc., has appealed from an order of the Ulster Special Term of the Supreme Court denying its motion to dismiss the complaint for failure to state facts sufficient to constitute a cause of action. Plaintiff is the owner of five consolidated mortgages which are a lien on defendant's property and which it holds as collateral security for loans made to one Raymond Riordon, now deceased. The principal indebtedness due from Riordon to the bank has been reduced to $7,913.61. The defendant, Harry Nelson Haight, is the owner of an interest in these mortgages which the plaintiff holds as security for its debt. The defendant, Chodikee Lake Farm-Camp, Inc., is the owner of the equity of redemption and has made default in the payment of interest on the mortgages and also has defaulted in the payment of taxes and insurance. Plaintiff instituted this action for the purpose of foreclosing the mortgages because of the failure of defendant, Chodikee Lake Farm-Camp, Inc., to pay interest, taxes and insurance. The defendant executor and defendant Haight refused to join plaintiff in the prosecution of the action and consequently were made defendants. The defendant, Chodikee Lake Farm-Camp, Inc., contends that plaintiff is not entitled to maintain the action because the assignor of the mortgage and the defendant Haight who have an interest therein have not consented to the prosecution of the same. It may well be that plaintiff is not entitled to all the relief which it seeks in this action but it is entitled to some relief and hence the motion was properly denied. Order unanimously affirmed, with $10 costs and disbursements.