Murphy v. Owen

12 N.Y. St. Rep. 876

• Court: New York Supreme Court
• Decided: December 13, 1887
• Status: Published

Opinion

Dykman, J.

This is an action for the partition or sale of real property in the town of Fishkill, Dutchess county, of which Julia A. Coffey died seized, consisting of two lots of land. There is a house upon one of the lots and the other lot is vacant.

The parties to this action are the owners of both of the lots as tenants in common, and on the 10th day of January, 1887, Mary Owen, one of the defendants in this action, commenced an action in this court for the partition or sale of the vacant lot alone.

On the 24th day of March, 1887, the plaintiff in that action amended her complaint by taking in the lot upon which there was a house and thus including all the real property owned in common by the parties.

On the 10th day of January, 1887, the same day of the commencement of that action for partition the Mechanics’ Savings Bank of Fishkill on-the-Hudson commenced an action for the foreclosure of a mortgage resting upon the lot which bore the house which had been executed by Julia A Coffey in her life-time.

This action was commenced on the 8th day of March, 1887, and about the tweniy-eigkth day of the same month an order was obtained therein requiring the defendants to show cause why the prosecution of the action commenced by Mary Owen should not be restrained until the determination of this action, and why the Mechanics’ Savings Bank, one of the defendants,_ should not be required to assign the bond and mortgage to the plaintiff in this action upon leave granted to her to pay the same, and why this action should not be substituted for and take the place of the action commenced by Mary Owen.

The motion came on for hearing and was granted and this appeal is from that order.

We think the granting of the order was a wise exercise of discretion. This action will accomplish the sale of the premises, the payment of the mortgage and the distribution of the proceeds, and thus perform all the offices of the first action for partition, even under this amended complaint, and the suit for the foreclosure of the mortgage.

The order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.