
    John J. P. Read, Resp’t, v. Louis Knell, Impleaded, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1894).
    
    1. Assignment—Mortgage—Administrator.
    An assignment of a mortgage by an administrator to a third person, and by the latter to the administrator individually, is not void, but voidable only at the election of the next of kin of the intestate.
    3. Same.
    In an action by such administrator, the mortgagor and his successors cannot controvert the title of the plaintiff.
    Appeal from judgmeut of the general term of the supreme court in the fifth judicial department, entered, upon an' order which reversed a judgment in favor of defendant.
    
      Adelbert Moot, for app’lt; Edmund P. Cottle, for resp’t.
    
      
      Affirming, 53 St. Rep. 343.
    
   Pinch, J.

The plaintiff brought this action to foreclose a mortgage upon the premises described in his complaint. The mortgage was originally given by one Ambruster to Elizabeth Read, to secure the payment of $1,700, and the mortgagor thereafter conveyed the land to the defendants Knell and wife. Elizabeth Read died intestate, and the plaintiff was duly appointed administrator of her personal estate. As such, and in his official character, he assigned the mortgage to a third person, by whom it was at once assigned back to the plaintiff as an individual, and he in due season brought this action in his own name as owner of the mortgage and not in his official character. Upon that circumstance the special term founded its decision which resulted in a dismissal of the complaint. The ground asserted was that such a transfer from an administrator to himself as an individual was absolutely void, and so the plaintiff had no title to the mortgage which he sought to foreclose. The general term reversed the judgment for that error, holding that the assignment was not void, but merely voidable at the election of the next of kin of the intestate, and that the mortgagor and his successors had no such election and could not themselves controvert the title of the plaintiff. The conclusion of the general term was a correct statement of the law. Hawley v. Cramer, 4 Cow. 719 ; Forbes v. Halsey, 26 N. Y. 65; Harrington v. Brown, 5 Pick. 519. Indeed, on this appeal, I do not understand the learned counsel for the appellant to argue to the contrary, or to defend the abstract rule asserted by the trial court which made the assignment absolutely void, even as against the mortgagor. What is asserted appears to be that the dismissal of the complaint was justifiable, although the assignments are regarded as merely voidable, because of a defect of parties both pleaded and proved. The argument is that, since the next of kin of Elizabeth Read might avoid the transfer, they became necessary parties to the foreclosure, which could not proceed without them. There are several answers to this •claim. It appears that Mrs. Read, the original mortgagee, left as her only next of kin, the present plaintiff, and a sister who died without issue, but is asserted to have been married to one Rockwell, and to have left a will. Whether she was so married and whether she left a valid will, are questions now being litigated in the courts. The surrogate admitted the alleged will to probate, but the general term reversed the decree and sent the questions involved to a jury for trial. There have been two such trials resulting in a disagreement, and there is no.executor or administrator of the sister who could be brought in. Beyond that, the special term proceeded on no such ground, but upon one which made that question totally immaterial and cut off wholly the right of the party, if the court should so determine, to bring in Rockwell on account of his claimed interest in the property. The general term did not decide the question whether there was or was not a defect of parties, but left that open as a question to be litigated upon the new trial which it ordered. Instead of taking the new trial, and raising the question of parties when, for the first time, it became materia], and securing a ruling thereon or an order bringing in Rockwell, the defendants took this appeal, giving a stipulation for judgment absolute. There is no finding that the sister is living, or that she has any representative whatever, because under the view taken by the special term, the inquiry did not arise and was not considered. It is quite clear, therefore, that the general term was right in reversing the judgment and sending the case back for a trial conducted upon correct principles, but without passing upon any possible defense which, under the pleadings, the defendants might have a remaining right to interpose.

The order should be affirmed, with costs, and judgment absolute be awarded against the defendants appealing upon their stipulation. All concur. Ordered accordingly.  