Jackson v. Marcus

18 A.D.2d 1111, 238 N.Y.S.2d 997, 1963 N.Y. App. Div. LEXIS 4006

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 1963
• Status: Published

Opinion

In separate actions for the foreclosure of three mortgages, defendant’s answer in each case admits the indebtedness alleged, and asserts a cause of action which constitutes a counterclaim against plaintiff and is denominated a third-party complaint as against another property owner, alleging a conspiracy between plaintiff and the so-called third-party defendant to permit the discharge of sewage into a lake upon which defendant’s lands abut. Additionally, in case No. 3794 defendant-appellant interposes a counterclaim for breach of covenant against incumbrances and, upon this appeal, respondent has consented that this issue be tried with those in the foreclosure action; and in case No. 4268 an additional counterclaim, alleging an agreement to release certain lots, is interposed but is not before us. We perceive no sound ground for disturbing the exercise of the Special Term’s discretion in severing the conspiracy causes of action from the foreclosure actions. (Civ. Prac. Act, §§ 262, 264,193-a.) Our decision upon this appellant’s appeal in a Surrogate’s Court proceeding (Matter of Jackson, 18 A D 2d 751) has some bearing upon appellant’s contention here that the effect of the severance would be to impair the collectibility of any judgment or judgments recovered by him in these actions. Orders in eases Nos. 4268 and 4269 affirmed, with $10 costs. Order in case No. 3794 modified so as to provide that the motion insofar as addressed to the first counterclaim be denied and, as so modified, affirmed, without costs. Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.