Solomon Simson, Executor, etc., Respondent, v. Lucina C. Satterlee et al., Appellants; The Same, Respondent, v. Addra E. Simonson, Appellant

Solomon Simson, Executor, etc., Respondent, v. Lucina C. Satterlee et al., Appellants. The Same, Respondent, v. Addra E. Simonson, Appellant. (Argued March 29, 1876 ; decided April 4, 1876.) Where the owner of a mortgage has pledged the same as collateral security for a debt less than the face of the mortgage, he has an interest in the same which entitles him to bring an action for the foreclosure of the mortgage. In such action the pledgee is a necessary party, but it is immaterial whether, as far as the mortgagor or other parties in interest are concerned, he is made a plaintiff or defendant. It is within the discretion of the court of original jurisdiction whether, upon overruling a demurrer by defendant, he shall be allowed to answer over. This was an action to foreclose a mortgage executed by the defendants Satterlee to plaintiffs’ testator. (Reported below, 6 Hun, 305.) The mortgage was assigned by said testator to defendant Martling to secure the payment of $1,000; the mortgage itself was for $4,000. The complaint set forth the assignment, alleged that the debt to secure which the mortgage was pledged has not been paid, and prayed that out of the proceeds of the sale the amount due thereon should first be paid. The defendants Satterlee demurred to the complaint on the grounds : First. Want of capacity in plaintiff' to sue. Second. That defendant Martling should have been made plaintiff instead of defendant. Third. Want of facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment absolute, as upon default, ordered against said defendants. Held, no error. The court stating the rule as above, and citing Whitney v. McKinney (Y J. Oh., 144); Johnson v. Hart (3 J. Gas., 322) ; Norton v. Warner (3 Edw. Ch., 106). The other appeal presented simply questions of fact, as to which it was held that there was evidence sufficient to sustain the ruling below. A. Prentice for the appellants Satterlee. George W. Stevens for the appellant Simonson. S. F. Pawson for the respondent. [MAJORITY — Per Curiam] Per Curiam opinion for affirmance. All concur. Judgment affirmed.