Keyes v. Akins

97 Misc. 84, 160 N.Y.S. 1004

• Court: New York Supreme Court
• Decided: October 15, 1916
• Status: Published

Opinion

Clark, J.

llns action is brought to foreclose several mortgages. Two of them were made by Peter W. Akins and wife, covering" a certain parcel of land in Hornell. Another mortgage was made at a different time, and by different.parties, namely:.by James B. Akins and by'Peter N. Akins and wife, covering a separate and distinct piece of property, which was owned by James B. Akins.

The property described in the first two mortgages was owned by Peter W. and Winifred Akins. Plaintiffs’ testator owned all of these mortgages, and it is sought to foreclose them in one action." It would seem that this cannot be done, because the different mortgages cover different pieces of property, were given by different persons, and to secure different debts.

The rule seems to be that causes of action on different contracts cannot be joined in the same action, unless all parties are affected by each. In other words, a holder of different mortgages upon different pieces of property and given by different parties, and securing different debts, cannot foreclose both mortgages in one action. Wiltsie Mort. Forecl. 324; Nichols v. Drew, 19 Hun, 490; Adams v. Stevens, 7 Misc. Rep. 468.

It being clear that all the mortgages mentioned in the complaint cannot be foreclosed in one action, the simpler way would be to divide the action, and that can be done if plaintiffs are so advised..

Motion for judgment on pleadings denied, with ten dollars costs, and demurrers sustained.

Motion denied, with ten dollars costs.