Opinion
Argued February 4, 1892
Decided March 8, 1892
Ira Leo Bamberger for appellants.
F.H. Cowdrey for respondent.
It is urged in behalf of the demurrant that it does not appear upon the face of the complaint that James M. Johnson was the owner of the fee of the mortgaged premises and a necessary party to the action begun by Bates, May 19, 1880, to foreclose the first mortgage, because it is said that it is not alleged that Nanette Pontau Johnson was then dead. It is averred in the ninth subdivision of the complaint that she died in 1880, leaving a last will and testament, which was duly probated February 13, 1880, under which James M. Johnson, as it is alleged, acquired the fee of the land, subject to the amount due upon the mortgage of April 27, 1854, foreclosed by Bates. The death of Mrs. Johnson, in 1880, is alleged in positive terms, and the only inference which can be drawn from the averment that the will was probated prior to the date when the first foreclosure action was begun, is that the testatrix died before that time, and this is the reasonable and fair inference to be inferred from the allegation. This alleged defect would have been barely a sufficient ground to support a special demurrer under the practice existing prior to the Codes, but under the present practice, if a more precise statement was desired, the defendant should have moved that the complaint in this particular be made more definite and certain. ( Murie v. Garrison, 83 N.Y. 14; Lorillard v. Clyde, 86 id. 384; Milliken v. Western U.T. Co., 110 id. 403.)
The more serious question is whether sufficient facts are stated in the complaint to entitle the plaintiffs to a judgment against the demurrant for an accounting. It is alleged that Louisa E. Bates and Henry W., her husband, executed February 10, 1885, a fraudulent mortgage to Emily Golder for $2,500, which was afterwards foreclosed by her, and that the premises were bid in and conveyed to Samuel F. Cowdrey, one of her attorneys of record in that action. It is also averred that Mrs. Golder, Henry W. Bates, Louisa E. Bates and Samuel F. Cowdrey have collected the rents of the premises amounting to more than $600 annually, which, as alleged, are largely in excess of the amounts due on both mortgages. By the demurrer Mrs. Golder admits these allegations, and taken in connection with the other averments in the complaint, we think they state a cause of action for an accounting against her within the cases hereinbefore cited.
The first ground of demurrer, that two causes of action were improperly united, was not argued by the respondent, and we think that but a single cause of action is stated in the complaint, to wit.: for an accounting and a redemption of the land by the payment of the just claims of the defendants, some of whom are alleged to have acted fraudulently.
The judgment of the General and Special Terms should be reversed with cost, and leave granted to the respondent to withdraw her demurrer and answer upon the payment of the cost thereof within twenty days.
All concur.
Judgment reversed.