Wood v. Harper ( 1895 )

CULLEN, J.

This is an appeal from an order of the special term . denying defendants’ motion to direct the plaintiff to separately state and number the several causes of action stated in the complaint. We think that there is but one cause of action stated;' ■that is, for the foreclosure of a mortgage. The allegations of the complaint in reference to the conveyance by an owner of the equity of redemption of a part of the premises mortgaged to the defendant Harper, the retention by that defendant out of the purchase money of a sum to discharge the plaintiff’s mortgage, and the assignment by the grantor in such conveyance of his claim for the unpaid portion of the purchase money are averred only to show that the portion of the mortgaged land sought to be sold in this action is in equity primarily liable for the mortgage debt. The judgment prayed for asks only the sale of these premises, and out of the proceeds of sale the satisfaction of the plaintiff’s mortgage. The allegations above referred to, as to the conveyance to the defendant Harper, may have been unnecessary to support or establish the plaintiff’s cause of action. But nevertheless they are to be in no sense considered as stating an independent cause of action. The defendants’ motion was therefore properly denied. The order appealed from should be affirmed, with |l0 costs and disbursements. All concur.