Opinion
July Term, 1899.
Henry D. Merchant, for the appellant.
William J. Roche, for the respondent Miller.
G.B. Wellington, for the defendants Smith.
In Metropolitan Trust Co. v. Tonawanda, etc., R.R. Co. (43 Hun, 521) the question was whether, when the junior mortgagee brought his action of foreclosure, making the senior mortgagee a party, and praying judgment that the mortgaged premises be sold subject to the lien of the senior mortgage, or that the same be paid from the proceeds of the sale, and the senior mortgagee answered setting up all the facts necessary to foreclose his mortgage, and prayed judgment for foreclosure and sale in the usual form, it was competent for the court to render the judgment prayed for by the senior mortgagee. The court held that such judgment could be rendered, and based its opinion upon its conclusion that the answer of the senior mortgagee was a counterclaim. This judgment was affirmed ( 106 N.Y. 673) on the opinion of the General Term. In the case as reported it does not appear whether any reply was served. Probably there was none because the complaint alleged the priority of the defendant's lien. Here the complaint alleges the equality in lien of three mortgages. The defendant Miller denies that equality, and had to allege priority in order to state a counterclaim. The allegation of priority is the essential part of the counterclaim within the case cited.
Following the authority cited we affirm the judgment.
Objection is made to the judgment by the appellant in that it is not final, and cannot be made so until the rights of the defendants Smith are adjudged. By her appeal the plaintiff recognizes its finality. The defendants Smith are not prejudiced by it as the issue between them and Miller is reserved. The judgment is not final as to all the issues and all the parties, but is final as to one issue between two of the parties. Practically the case stands as if Miller were plaintiff and the plaintiff Wade and the others defendants, and as if Wade had raised a separate issue against the plaintiff which the court has separately tried and determined. When all the issues have been tried final judgment can be rendered between all the parties. (Code Civ. Proc. §§ 1204, 1221.)
The judgment should be affirmed, with costs in favor of the respondent Miller against the appellant.
All concurred.
Judgment affirmed, with costs in favor of respondent Miller against the appellant.