Bernard Fresenborg, Respondent, v. Hugh J. Reilly, Appellant

Bernard Fresenborg, Respondent, v. Hugh J. Reilly, Appellant. P leading—demurrer —foreclosure of a mortgage containing a covenant to pay, given as security to a note—the liability on the note is immaterial. The complaint in an action alleged that Adeline Reilly made a promissory note, which was payable to the order of the plaintiff and was indorsed by the defendant before its delivery, and was, so indorsed, delivered to the plaintiff for a good consideration; but there was no allegation that the defendant indorsed the note' in order to give credit to the maker with the plaintiff, The complaint further alleged that, in order to secure the payment of the note, the defendant executed and delivered to the plaintiff a mortgage upon the real estate described in the; complaint, which, among other things, provided that the defendant would pay the indebtedness in question, and that- if default was made in the payment of' any part of it the plaintiff should have power to sell the premises according to¡ law. It then alleged default, demand of payment and a refusal. A demurrer was interposed to the complaint upon the ground that it did not state-facts sufficient to constitute a cause of action.- Held, that as the complaint contained an allegation that the defendant by the-, mortgage expressly covenanted to pay the note, a good cause of action was pleaded outside of any liability upon the note, and that it was, therefore, unnecessary to consider whether the legal presumption arising upon the face of the note was that the defendant was a second indorser, and what effect", this view had upon the plaintiff’s right to recover upon the note itself. Appeal by the defendant, Hugh J. Reilly, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of September, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, and also from an order entered in said clerk’s office on the 10th day of August, 1895, overruling thet defendant’s demurrer to the plaintiff’s complaint. Browne c& Sheehan, for the appellant. George 3. Finch, for the respondent. [MAJORITY — Brown, P. J.:] Brown, P. J.: This appeal is from a final judgment entered in an action to fore^close a mortgage upon real estate, and the notice of appeal presents' for review an intermediate order overruling a demurrer taken to the complaint on the ground that it does not state facts sufficient to-constitute a cause of action. The complaint alleges: (1) The making of a promissory note by Adeline Reilly, payable-to the order of the plaintiff, which was, before its delivery, indorsed by the appellant, and, so indorsed, delivered for a good consideration to the plaintiff. , (-—- (2) That thereafter the appellant, for the purpose of securing the-payment of said note, duly executed and delivered to the plaintiff a. mortgage upon the real estate described in the complaint. That the said mortgage contained the following provision: “ Provided, always, * * * that the said party of the first part will' ■pay the indebtedness as hereinbefore provided, and if default be made in the payment of any part thereof the party of the second loart shall have power to sell the premises herein described according to law.” It further contained allegations of default in the payment of the' note by the maker and demand of payment thereof from the appel- > lant, and refusal. The criticism made upon the. complaint by the counsel for the appellant is that it was necessary for the plaintiff to allege that the ■appellant indorsed the note in. question for the purpose of lending •credit to the maker, and that, in the absence of such an allegation, the legal presumption arising upon the face of the note was that the appellant was a second indorser. We deem it unnecessary to express any opinion upon this question. . Whether parol'evidence would have been .admissible to show the real .purpose and intent of the indorser, in the absence of'an allegation to that effect, need not now be decided. The complaint before us contains an allegation that the appellant, in the mortgage, expressly covenanted to pay the note. There was consequently a good cause of action pleaded entirely outside of any ■question of liability arising upon the note. But the judgment appealed from contains no provision adjudging the. appellant to be personally liable for the. debt, and there can be, of course, nó quest tian but that the mortgage was enforcible against the property. In the absence of a provision in the judgment providing that the appellant shall be liable for any deficiency arising upon the sale of the mortgaged property, I am unable to jjerceive what cause he has to appeal. The judgment and order must be affirmed, with costs, to be paid by the appellant personally. ■ All concurred, except Pratt, J., not sitting. Judgment and order affirmed, with costs against, the appellant personally. -