Doctor v. Smith , 23 N.Y. Sup. Ct. 245 ( 1878 )

Dyicman, J.:

It is not customary, in an action for the foreclosure of a mortgage, to make prior incumbrancers parties, neither is it necessary; yet the plaintiff may make a person holding a prior mortgage a party defendant for the purpose of having the amount of the in-cumbrance liquidated and paid out of the proceeds of the sale. In this action Matthias was made a party, not as a prior but as a subsequent mortgagee, holding a mortgage on the same premises, which was a lien subsequent and subordinate to that of the plaintiff. It so happened, however, that he had two mortgages on the same premises prior to that of the plaintiff, and he answered in the action, setting them up and asking to have them paid in their order of priority, before any of the proceeds of the sale of the premises were applied to the payment of the plaintiffs’ mortgage. The mortgagor and his wife are made defendants, and they join in this prayer.

We do not see why the relief asked for should not be granted. Section 1204 of the Code of Civil Procedure is, that judgment may be given for or against one or more plaintiffs, and for or against one or more defendants. It may determine the ultimate rights of the parties on the same side as between .themselves, and it may grant to a defendant any affirmative relief to which he is entitled. It is against the policy of our law to require a multiplicity of actions, and it is in accordance with the reforms in the mode of judicial proceedings in our State to determine the rights of all the parties in the same action; especially is this true in equity actions such as this. There would seem to be no reason in refusing to allow the defendant to have his two prior mortgages paid out of the proceeds of the sale of the premises under the judgment in this action, and to have the amount ascertained and a provision inserted in the judgment to that end.

The judgment must be affirmed.

BaknaRD, P. J., concurred; Gilbert, J., not sitting.

Judgment affirmed.