NEWMAN v. DICKSON

NEWMAN v. DICKSON. N. Y. Supreme Court, First Department; Chambers, December, 1876. Foreclosure.—Pleading.—Amendment. A defendant in foreclosure, setting up that the mortgage is void for usury between plaintiff and a co-defendant, cannot compel an amendment of the complaint, for the purpose of setting forth the transaction, but may be protected by litigating the question with his co-defendant. Motion to compel plaintiff to amend complaint. W. G. and J. E. McCormack conveyed certain real estate to the defendant, Dickson, who gave back a purchase money mortgage. The McCormacks afterwards assigned the bond and mortgage to the plaintiff, Newman ; and the defendant, Dickson, conveyed the land to one Fowler. Plaintiff brought this suit against Dickson and Fowler to foreclose the mortgage: Dickson answered alleging that the bond and mortgage were given to the MeCormacks, and by them assigned to the plaintiff, at a discount of fifteen per cent, in pursuance of a scheme between himself, Fowler and the McCormacks, and with the knowledge of the plaintiff, to avoid the usury law, for the accommodation of Fowler. After the service of the answer, the defendant, Dickson, moved to compel the plaintiff to amend his complaint by inserting allegations setting up the facts alleged in his answer ; and asking that the defendant, Fowler, be compelled to join issue on this defense. Abner C. Thomas, for the motion. Joseph Fettretch, opposed. [MAJORITY — Davis, P. J.] Davis, P. J. The motion must be denied. The plaintiff cannot insert the allegations of the answer of Dickson, in his complaint without destroying his right of action. The answer sets up a defense to the complaint, and, if found to be true, will defeat the action altogether. The defendant, Fowler, has notice of the allegations of his co-defendant’s answer, and the court will probably have power, on the trial, to protect the defendant, Dickson, if he establish the facts alleged, by so framing the decree as to require any deficiency to be first collected of him. However this may be, it is clearly not the right of Dickson to compel the plaintiff to amend, by inserting allegations of this character denied. Motion denied, with ten dollars costs, but without prejudice to any proceeding to compel the defendant, Fowler, to take issue on the allegations of the answer. No appeal was taken. As to litigation between co-defendants in foreclosure, see Smart v. Bement, 4 Abb. Ct. App. Dec. 273.