Kamerman v. C. D. C. Furniture Manufacturing Corp.

5 Misc. 2d 27, 162 N.Y.S.2d 999, 1956 N.Y. Misc. LEXIS 1197

Opinion

Irving H. Saypol, J.

Motion is denied with, respect to adding a second cause of action on promissory notes and granted on consent to add parties, to correct names and errors and to supply omissions.

The primary object sought here is to permit the simultaneous maintenance of dual actions on the debt reflected by promissory notes secured by a mortgage being foreclosed, contrary to legislative policy (Civ. Prac. Act, § 1078) and long judicial history (Equitable Life Ins. Soc. v. Stevens, 63 N. Y. 341, 344; White v. Wielandt, 259 App. Div. 676, 681-682, affd. 286 N. Y. 609; President & Directors of Manhattan Co. v. Callister Bros., 256 App. Div. 1097, affd. 282 N. Y. 629). The interpretation put on section 1078 of the Civil Practice Act as imperfectly quoted is specious when the whole context is read. It prohibits another action on the debt without leave of court while the foreclosure action is pending or after final judgment. The suggestion that Shipman v. Niles (75 App. Div. 451, affd. 177 N. Y. 527) allows alternative procedures is correct. It does not authorize simultaneous alternate actions. Settle order.