Gustav Gardner, Appellant, v. Charles H. Gardner and Others, Defendants, Impleaded with Mechanics Bank, Respondent

Gustav Gardner, Appellant, v. Charles H. Gardner and Others, Defendants, Impleaded with Mechanics Bank, Respondent. Second Department, June 23, 1916. Pleading — complaint in action to foreclose mortgage and to recover damages for conversion—misjoinder of action — demurrer. A father, as guardian of his infant son, borrowed some of his ward’s estate, securing it by a mortgage covering his own land and deposited moneys belonging to the estate in a trust company to which a bank succeeded. The son upon becoming of age agreed to release to the bank his interest in the bond and mortgage and the deposit therein and executed to his father a release of all claims against him as guardian and also against his surety. In an action between the son and father the agreement and release were declared fraudulent and void and a judgment rendered for the son, which he could not collect. The father executed to himself and wife a satisfaction of the mortgage which recited payment, although no part of the principal had been paid and some of the interest was unpaid. In an action by the son to recover the amount found due in the prior action, first, by applying the avails of the mortgage on the foreclosure of it, and, second, by satisfying what may remain unpaid and due by using so far as needed the deposit converted by the father and appropriated by the defendant .bank to the payment of the indebtedness of the father to the bank, the complaint is not demurrable upon the ground that two causes of action have been improperly united, one against certain defendants to foreclose a mortgage and the other against another defendant to recover damages for conversion. Appeal by the plaintiff, Gustav Gardner, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of May, 1916. Carl A. Mead, for the appellant. Arnold M. Schmidt [.Edward T. Horwill with him on the brief], for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The defendant, Mechanics Bank, demurred' to the complaint upon the ground that two causes of action had been improperly united, one against certain of the defendants to foreclose a mortgage, and one against another defendant to recover damages in conversion. The court denied the plaintiff’s motion for judgment on the pleadings and sustained the demurrer with leave to plead over on terms. Plaintiff’s father, as his guardian, assumed to borrow some of bis ward’s estate and to secure it by mortgage covering his own land and executed by himself and wife, and he deposited moneys belonging to the estate in a trust company of which the respondent is the successor. The son became of age on January 5, 1911; on January 14, 1911, the son agreed to release to the father his interest in the bond and mortgage and the deposit in the bank, and on January 19, 1911, the son executed to the father a release of all claims against him as guardian, as well as against his surety. The consideration stated was $1, the mortgage and a certain sum in the trust company. The consideration was not paid. The agreement and the release were procured by fraud on the part of the father and, in an action between the son and father, the court adjudged them void and gave the son judgment for $8,590.60, which the son has been unable to collect on execution. On or about January 6, 1911, the general guardian executed to himself and wife a satisfaction of the mortgage, which recited payment, although no part of the principal had been paid and some of the interest was unpaid. This action seeks to recover the amount found due in the accounting action, first, by applying the avails of the mortgage on a foreclosure of it; second, by satisfying what may remain unpaid and due, by using so far as needed the deposit converted. by the father and appropriated by the defendant bank to the payment of an indebtedness from the father to the bank. In other words, the complaint shows that the plaintiff claims to own the mortgage and the deposit to the extent of the amount found due him in the accounting action, and that he seeks to supplement any deficiency beyond the mortgage by enforcing contribution against the bank to the extent of the deposit received by the bank in payment of an indebtedness to it. The bank owns all of the deposit save what the accounting herein may show due the plaintiff, and is interested in the disposition of the avails of the mortgage inasmuch as it is called upon to make • contribution for any deficiency that may arise. The present appeal does not at all concern the question whether the plaintiff has a maintainable cause of action against the defendants, but the demurrer assumes that it has a cause of action against each of them and that they are improperly united. The respondent is essentially interested in the remedy that the plaintiff is seeking to enforce. The order should be reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings granted, with ten dollars costs, with leave to the demurrant to plead over upon payment of costs. Jenks, P. J., OaRr, Stapleton and Putnam, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion for judgment on the pleadings granted, with ten dollars costs, with leave to the demurrant to plead over upon payment of costs.