Wait v. Getman

Putnam, J.: We are unable to regard the answer served by the defendant in this action as frivolous. The fact that an answer is insufficient so that a demurrer thereto will be sustained, does not necessarily determine that it is frivolous. “ That only may be regarded as frivolous which is made to appear so incohtrovertibly by a baré statement of it and without argument. If an argument is required to show that the pleading is bad, it is not frivolous.” (Youngs v. Kent, 46 N. Y. 672, 674; German Exchange Bank v. Kroder, 13 Misc. Rep. 192 ; Cook v. Warren, 88 N. Y. 37.) In this case the. answer, even if deemed insufficient, is not so clearly bad as to show that it was interposed in bad faith. It certainly requires an argument to establish its insufficiency. Even if we should conclude that had the plaintiff interposed a demurrer to the answer it would have been sustained, we think the insufficiency of the pleadings is not so clearly apparent that a judgment under the provisions of section 537 of the Code of Civil Procedure could properly be directed in favor of the plaintiff. But we are of opinion that the defense set out in the answer, that James J. Byard was a proper and necessary party defendant, was a valid one. The defendant Dorr Getman, by his assumption of the payment of the mortgage held by James J. Byard in the deed executed to him by the plaintiff,' became as to said mortgage as between him and the plaintiff the principal debtor, and the liability of the plaintiff thereon was that of a surety. (Fleischhauer v. Guggenheimer, 15 Wkly. Dig. 164; Marshall v. Davies, 78 N. Y. 414, 421; Wales v. Sherwood, 52 How. Pr. 413.) [172] On the execution and delivery of the deed from the plaintiff to Dorr Getman, the latter being liable to the mortgagee Byard as the principal debtor, Byard on the foreclosure of his mortgage, in case of a deficiency, could enforce payment thereof from the said defendant in the same manner as if he had executed a bond for the portion of the said mortgage debt by him assumed. The plaintiff, however, remained liable on said mortgage as a surety. It was to protect his interest as a surety that the mortgage set out in-the complaint was executed. By its express terms it was given “ as a security for the payment of the sum of $2,100.00 according to the conditions of a deed this day given from said Wait to said Getman; the mortgage is intended as a security only for the performance of the agreements' made by said Getman in said deed to pay off and assume the payment to the extent of $2,100 of a mortgage on said premises held by James J. Byard.” It was thus given, not to secure the payment to the plaintiff of the sum of $2,100, but to secure the performance of the defendant’s covenant in the deed to pay Byard that sum. This action, therefore, must be deemed one to enforce the covenant of the defendant to pay Byard $2,100. It is evident that in ■such an action Byard should be made a party. The defendant Dorr Getman is clearly entitled to have the amount collected by the plaintiff on the mortgage in suit applied on the Byard mortgage, the payment of which it was given to secure. Such application ■cannot be enforced, however, unless Byard is a party to the action. Byard should also be made a party so that the mortgaged premises can be sold free from the lien of his mortgage. If the premises shall be sold under the judgment as entered in this action such -a sale would leave the Byard mortgage outstanding. Under such -circumstances, a fair price for the property could not be realized on ■a sale. The defendants would probably be divested of their land for an inconsiderable sum. By the judgment, as entered in the action, the sheriff is directed to sell the mortgaged premises, and after paying the expenses of ■sale, taxes and assessments, and the costs of the action, to pay to the plaintiff the amount found due by the referee’s report ($2,214.66) •and interest, and the surplus, if any, to the county treasurer of ■Otsego county, subject to the future order of this court. No pro [173] vision is contained in the judgment that the money realized on a. sale of the property under the mortgage in suit, or any part thereof, shall be applied on the Byard mortgage. There is no provision in the judgment relating to such mortgage. We see no reason why, under the provisions of the judgment, the plaintiff might not retain for his own use the amount received by him from the sheriff on the sale of" the mortgaged premises, leaving the Byard mortgage outstanding, in full force, and in case of its foreclosure, leaving defendant liable for a deficiency on a sale of the mortgaged premises thereunder. The mortgage on which the plaintiff seeks to maintain this action, being given to secure the payment by defendant of the mortgage held by J ames J. Byard, and this action being brought to enforce such payment, we think that Byard is a necessary party to the action, and hence that the answer of the defendants in that regard was not insufficient. Without considering other points discussed by counsel, we reach the conclusion that the judgment and order should be reversed, with costs to the appellant, and the motion for judgment denied, with costs. All concurred. Judgment and order reversed, witli costs to appellant, and motion for judgment denied, with ten dollars costs and disbursements.