
    Henry Campbell, Resp’t, v. William Campbell et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1889.)
    
    1. Pleading—Amendment—Action of fobeclosube.
    Plaintiff, in an action to foreclose a mortgage, sought leave to amend his complaint by setting forth in substance that the mortgage was given as security for moneys which were employed in the payment, at the mortgagor’s request, of a judgment or decree of foreclosure and sale obtained in an action to foreclose s prior mortgage upon the same premises, and demanding that the plaintiff be adjudged the equitable assignee of that judgment, and, as such, entitled to enforce the same in case he fails to establish the execution of the mortgage in suit. The. court below granted leave to make such amendment. Reid, no error.
    3. Amendment—Fobeclosube.
    
      Reid, that if plaintiff establishes the cause of action in the amendment asked for, he will place himself in the position of an equitable assignee of that judgment, and, as such, be entitled to enforce the same. Patterson v. Birdsall, 64 N. Y., 394, and Gerwig v. Bitterly, 56 id., 314, followed.
    3. Same—Pleading—Poweb of coubt—Code Civ. Pbo., § 733.
    The power of the court to amend pleadings is largely discretionary, and is to be exercised freely and liberally in furtherance of justice.
    4. Same.
    A court will not undertake to determine, upon an application for leave to amend a pleading, whether the proposed amendment sets forth a cause of action or defense, which can be finally maintained or established, unless it be made to appear conclusively that the amendment, if granted, could be of no possible avail to the party asking it.
    '5. Coubt of equity.
    A court of equity should frame such issues as will enable the plaintiff to obtain the relief he seeks, if the evidence at the trial establishes the truth of his allegations. Farmers’ and Mechanics' Bank v. Joslyn, 37 2ST. Y., 353; N. T. Ice Co. v. Rorthwestern Ins. Co., 23 id., 357, followed
    Appeal from an order of the special term, granting leave to plaintiff to serve an amended complaint.
    
      Frank W. Brown, for app’lts; Knight & Barnes, for ■resp’t.
   Adams, J.

The power given to the court in the matter of amending pleadings, is largely discretionary, and the very language of the Code implies that it is to be exercised freely and liberally in furtherance of justice. Code Civil Procedure, section 723. Giving to the section cited this interpretation, the court below saw fit to grant to the plaintiff leave to amend his complaint by setting up facts constituting. as it is claimed, a new cause of action.

The amendment thus allowed sets forth in substance that the mortgage, to foreclose which this action is brought, was given as security for moneys which were employed in the payment, at the mortgagor’s request, of a judgment or decree of foreclosure and sale obtained in an action to fore•close a prior mortgage upon the same premises, and asks that the plaintiff be adjudged the equitable assignee of that judgment, and, as such, allowed to enforce the same in case he fails to establish the execution of the mortgage in suit, the execution of which is denied by the defendant, William Campbell, the mortgagor.

The motion was resisted at special term, upon the ground that the amendment asked for would permit the plaintiff to join two inconsistent causes of action, and upon the further ground that it would not, if allowed, set forth a good cause of action.

The policy of the law is to encourage the joinder of two nr more causes of action arising out of the same transaction (Code Civil Proc., § 484); and no adequate reason has been furnished by the defendant for a departure from that policy in this case. If the facts set forth in the proposed amendment constitute two causes of action, they certainly arose out of the same transaction, and it is difficult to see in what respect they are inconsistent with each other, inasmuch as the relief demanded is designed simply to meet the facts as they shall be established upon the trial.

It is claimed by the defendant, Campbell, that he did not execute the mortgage in suit, although it appears to have been executed by him, and is conceded to have been executed for his benefit, and as security for moneys which were paid out by the plaintiff, at his request. It follows, therefore, that a court of equity ought to frame such issues as will enable the plaintiff to obtain the relief he seeks, if the •evidence, at the trial, shall establish the truth of his allegations. Farmers and Mechanics’ Bank v. Joslyn, 37 N. Y., 353; The New York Ice Company v. The Northwestern Ins. Co. of Oswego, 33 id., 357.

The court will not, as a general thing, undertake to determine upon an application for leave to amend a pleading, whether the proposed amendment sets forth a cause of action or defense, which can be finally maintained or established, unless it be made to appear conclusively that the amendment, if granted, could be of no possible avail to the party asking it. Muller v. Muller, 21 W. D., 287; Mitchell v. Allen, 25 Hun, 543.

This would seem to render unnecessary any extended examination of the question raised by the second ground of defendant’s objection, for it is by no means clear that the plaintiff does not set forth a good cause of action in the amendment asked for.

On the contrary, we think that his cause of action, which is designed to enforce a judgment, is not barred by the statute of limitations (Code of Civ. Pro., § 376), and that if ho establishes the same by evidence, he will place himself in the position of an equitable assignee of that judgment,and, as such, be entitled to enforce the same. Patterson v. Birdsall, 64 N. Y., 294; Gerwig v. Sitterly, 56 id., 214.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Dwight, J., concurs; Barker, P. J., not sitting.  