Kupfer v. Thompson , 238 N.Y.S. 222 ( 1929 )

Lazansky, P. J.

(dissenting). I dissent. Defendants Erdmann and Elder were not brought into this litigation by plaintiffs. The amended complaint alleged that their interest was subordinate to that of plaintiffs. The denial of this allegation drew an issue under which these defendants were permitted to assert their claim, that as a matter of law they had never delivered a deed to Savage and that, therefore, plaintiffs’ mortgage was invalid against them. The counterclaim, which sought no equitable relief, was unnecessary and was such in name only. (Bennett v. Edison Electric Il. Co., 164 N. Y. 131; Susquehanna S. S. Co. v. Andersen & Co., 239 id. 285.) Plaintiffs were not proper or necessary parties in an ejectment suit. They merely had a lien on the property. They neither claimed title to, nor the right to possession of, the real estate involved in any wise adversely to these defendants. (Becker v. McCrea, 193 N. Y. 423.) Under these conditions, these defendants were not entitled to a trial by jury either as a matter of right under section 425 of the Civil Practice Act, or as a matter of constitutional right. (Mackellar v. Rogers, 109 N. Y. 468.) In my opinion, the failure of plaintiffs to challenge the sufficiency of the counterclaim or the service of a reply thereto may not be deemed as a consent to a jury trial of the counterclaim. In other respects, the determination of the trial court was fully warranted. Furthermore, payments made by plaintiff Emil F. Kupfer to prevent foreclosure of the first and second mortgages, under the circumstances of the case, warranted a judgment in favor of plaintiffs. (Pittshurgh-Westmoreland Coal Co. v. Kerr, 220 N. Y. 137.)

Judgment and order reversed upon the law and motions for a jury trial granted, costs to abide the event. Findings of fact and • conclusions of law inconsistent herewith are reversed. Settle order on notice.