
    Sophie Marchais La Grave, Respondent, v. Leopold Hellinger, Appellant.
    First Department,
    December, 1905.
    Mortgage—when leave to bring action on bond should-be granted.
    The fact that a mortgagor claims to have a valid defense for the balance unpaid on a bond secured by mortgage is no reason for denying an application by the ■ assignee of such bond for leave to bring an action thereon under section 1628 of the Code of Civil Procedure..
    The validity of such defense should be left for determination in the action and should not be tried upon the affidavits used on the motion for leave to sue.
    Appeal by the defendant, Leopold Hellinger, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 12th day of May, 1905, granting the plaintiff’s motion for leave to commence an action to recover the amount due upon a certain bond.
    
      Harold Nathan, for the appellant.
    
      William J. Lippmann, for the respondent.
   Ingraham, J.:

■ The appellant does not contend that the full amount of the mortgage was actually paid. He does claim, .however, that he has a valid, defense to any claim made for the balance of the bond secured by the mortgage that was unpaid. Section 1628 of the Code of Civil Procedure provides that “ while an action to foreclose a mortgage upon real property is pending, or after final judgment .for the. plaintiff therein, ho other action -shall be commenced or maintainéd, to recover any part of the mortgage debt, without leave of the court in which the former action, was brought.” While it is well settled that to justify the granting of an order under this provision the moving party must show a substantial reason -why the liability upon a bond secured, by a mortgage was not enforced in the foreclosure action, and that if it appears for any reason that it would be inequitable for the mortgagee to enforce the bond after the mortgage had been foreclosed, the application should be denied, yet the mere fact that the obligor upon the bond claims to have a defense to the action to enforce the mortgage should not prevent a mortgagee from presenting the question as to the liability of the obligor upon the bond in a regular way upon the trial of an action-The object of this provision was “to prevent oppressive litigation by the 'multiplication of actions against the. several, persons who might be liable for the same mortgage debt, and to require all of the parties interested in its payment to be brought into the same suit, and thus settle their respective liabilities in one comprehensive action.” (Vanderbilt v. Schreyer, 91 N. Y. 392.)

The right to enforce the first payment that became due upon the bond and mortgage in question had been transferred prior to the' commencement of the action to foreclose the mortgage upon the property, and that right has now -.vested in the moving party. Whether or not this is sufficient to enable the moving party to obtain a judgment against the obligor upon the bond, should be determined upon the trial of the action, rather than upon this, motion. "Unless the claim for this first -payment was extinguished under the doctrine of merger, as before stated, it is quite apparent that the money has not been paid. Whether the agreement between the mortgagee and Brown and his sister (plaintiff’s assignor) discharged the defendant,, is also a question which should be fried and not determined upon affidavit.

In view of the facts shown, without in any way intimating an opinion, as to the liability of the defendant, w.e think the-court below was justifed in allowing the question as to the liability of the obligor upon this bond to be tried in an action; and the order appealed from, should, therefore, be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.^  