Mayer v. Borough Hall Holding Corp.

Appellate Division of the Supreme Court of New York

Mayer v. Borough Hall Holding Corp.

263 A.D. 971, 33 N.Y.S.2d 179

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 24, 1942

StatusPublished

This text of 263 A.D. 971 (Mayer v. Borough Hall Holding Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mayer v. Borough Hall Holding Corp., 263 A.D. 971, 33 N.Y.S.2d 179 (N.Y. Ct. App. 1942).

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Opinion

Order granting motion to vacate order granting leave to implead respondents and to serve a cross-complaint upon them, reversed in the exercise of discretion, without costs, [972]*972and motion denied, without costs. Counterclaims in answers of defendants Alice M. Tompkins and Eleanor B. Stumpf to plaintiff’s foreclosure action allege that mortgages of these defendants are superior to plaintiff’s mortgages by reason of an agreement entered into with respondents’ testator, of which agreement respondents had knowledge, despite 'which they fraudulently and illegally consolidated the mortgages sought to be foreclosed. In the cross-complaint it is alleged' that respondents sold the consolidated mortgages to plaintiff with an express written representation that the mortgages were first liens. If said defendants succeed in procuring judgment on their counterclaims, plaintiff seeks return of her purchase price from the respondents. There is sufficient identity of subject-matter to warrant the impleading of the respondents and the cross-complaint against them (Civ. Prac. Act, § 193, subd. 2; Hejza v. New York Central R. R. Co., 230 App. Div. 624, 627; Barclays Bank v. Tom, [1923] 1 K. B. 221, 223, 224), even though other issues may be presented between plaintiff and respondents. (Municipal Service R. E. Co. v. D. B. & M. Holding Corp., 257 N. Y. 423, 429; Nichols v. Clark, McMullen & Riley, Inc., 261 id. 118,124,125.) The sequence and practice at the trial are largely dependent upon the precise nature of the cause of action set forth in the cross-complaint and the relief which is sought, whether legal or equitable, which should be clarified. The present order is reversed without prejudice to the respondents making such motion or motions as they may be advised addressed to the sufficiency of the cross-complaint, in the light of the plaintiff’s claim as to its nature. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur. [See post, p. 1001.]

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Order granting motion to vacate order granting leave to implead respondents and to serve a cross-complaint upon them, reversed in the exercise of discretion, without costs, [972]*972and motion denied, without costs. Counterclaims in answers of defendants Alice M. Tompkins and Eleanor B. Stumpf to plaintiff’s foreclosure action allege that mortgages of these defendants are superior to plaintiff’s mortgages by reason of an agreement entered into with respondents’ testator, of which agreement respondents had knowledge, despite 'which they fraudulently and illegally consolidated the mortgages sought to be foreclosed. In the cross-complaint it is alleged' that respondents sold the consolidated mortgages to plaintiff with an express written representation that the mortgages were first liens. If said defendants succeed in procuring judgment on their counterclaims, plaintiff seeks return of her purchase price from the respondents. There is sufficient identity of subject-matter to warrant the impleading of the respondents and the cross-complaint against them (Civ. Prac. Act, § 193, subd. 2; Hejza v. New York Central R. R. Co., 230 App. Div. 624, 627; Barclays Bank v. Tom, [1923] 1 K. B. 221, 223, 224), even though other issues may be presented between plaintiff and respondents. (Municipal Service R. E. Co. v. D. B. & M. Holding Corp., 257 N. Y. 423, 429; Nichols v. Clark, McMullen & Riley, Inc., 261 id. 118,124,125.) The sequence and practice at the trial are largely dependent upon the precise nature of the cause of action set forth in the cross-complaint and the relief which is sought, whether legal or equitable, which should be clarified. The present order is reversed without prejudice to the respondents making such motion or motions as they may be advised addressed to the sufficiency of the cross-complaint, in the light of the plaintiff’s claim as to its nature. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur. [See post, p. 1001.]

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263 A.D. 971, 33 N.Y.S.2d 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayer-v-borough-hall-holding-corp-nyappdiv-1942.

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