St. Marks Fire Insurance v. Harris

13 How. Pr. 95

• Court: New York Supreme Court
• Decided: March 15, 1856
• Status: Published

Opinion

Davies, Justice.

The complaint is filed to foreclose a mortgage, given by defendant to one Dennis Harris, and by him assigned to the plaintiffs. The answer admits all the allegations of the complaint, except the recording of the mortgage, and of the assignment; and also claims that Dennis Harris, by the assignment to the plaintiffs, guarantied the payment of the bond and mortgage, and that he is liable for any deficiency, and the refoie a proper party.

A motion is now made on behalf of the plaintiffs for judgment, on account of the frivolousness of the answer.

The denial of the recording of the mortgage and assignment, presents an immaterial issue in this case. It is of no moment to the defendant whether they were recorded or not; and his denial of the fact raises no issue which is an impediment to the plaintiffs’ recovery. The same may be said as to the new matter set up in relation to Dennis Harris. It does not follow that because he has covenanted to pay any deficiency arising upon the sale of the mortgaged premises, that therefore he is a necessary party in a suit to foreclose the defendant’s equity of redemption therein. I think clearly he is not.

Judgment must, therefore, be given for the plaintiffs, accord-to the prayer of the complaint, notwithstanding the answer.