Merrill v. Bischoff

73 N.Y. St. Rep. 685

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 1896
• Status: Published

Opinion

PER CURIAM.

The complaint demanded no relief against the defendant Henry Bischoff. It stated facts showing that he was the original mortgagee, to whom the bond and mortgage were delivered; that, subsequently, he entered into an agreement with the defendant Herman Reiners, to whom the property had been conveyed, whereby he extended the time for the payment of the moneys secured by the mortgage; and that, still later, and on or about the 18th day of December, 1894, by a deed of assignment bearing date on that day, he duly “ assigned said mortgage, together with said bond or obligation, to this plaintiff, and therein covenanted that the sum of $3,000, with interest thereon from November 1, 1894; was unpaid and owing thereon.” There is no allegation in the complaint in relerenoe to the appellant

By his answer, the defendant Henry Bischoff admitted that’ he assigned and transferred the bond and mortgage as alleged in the complaint. It was, doubtless, the object of the plaintiff, in making him a party, to procure this admission, either expressly ¡ in the answer, or by the failure of the defendant Bischoff to plead at all. For this purpose he was a proper party to the action, although not a necessary party. His admission of the allegation that he had assigned and transferred the bond and mortgage, as alleged in the-complaint, left him without any defense to the plaintiff’s cause of action ; and the court at special term was therefore right in holding that the answer .constituted no obstacle to the rendition of judgment in favor of the plaintiff. We are of the opinion, however, that the order should not have awarded any costs to the-plaintiff, inasmuch as the answer was a benefit instead of an injury to him.

Order affirmed, except the provision as to costs, which is reversed. ^ No costs of appeal