
    CAMPBELL v. CAMPBELL.
    
      N. Y. Supreme Court, Fifth Department; General Term,
    
    February, 1889.
    1. Pleading alternative relief.] Where the execution of a mortgage, given to secure moneys used to pay off a prior incumbance, is-denied, the holder of the mortgage, on foreclosing, may ask as-alternative relief, that if he fail to establish its execution, he be adjudged equitably entitled to enforce the prior incumbrance.
    2. Inconsistent causes of action.] If these facts constitute two causes-of action, they are not inconsistent.
    3. Amendment by leave.] The policy of the law encourages the joinder of several causes of action ; and leave to amend should not-be refused merely because there may be some doubt whether the proposed allegation will constitute a cause of action or defence.
    Appeal from an order
    Plaintiff brought this action to foreclose a mortgage on real property.
    
      Defendant’s answer denied that he executed the mortgage.
    Plaintiff obtained at Special Term leave to serve an .amended complaint setting up that the mortgage' he sought to foreclose was given as security for a loan used by defend.ant’s request in paying a prior judgment of foreclosure of .another mortgage on the same premises, and asking as alternative relief that if he failed to establish the execution of the mortgage now in suit, he might be adjudged the ■equitable assignee of the judgment.
    
      F. W. Brown, for defendants, appellants.
    
      Knight & Barnes, for plaintiff, respondent.
   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 Oiv. Fro. § 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 foreclose 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 or more causes of action arising out of the same transaction {Code Civ. Pro. § 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 respects 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, etc., Bank v. Joslyn, 37 N. Y. 353; New York Ice Co. v. Northwestern Ins. Co., 23 N. Y. 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 can 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 N. Y. Weekly Dig. 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 defendants’ 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 Civ. Pro. §• 376 , and that if he establishes the same by evidence, he will place himself in thti 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 $10 costs and disbursements.

Dwight, J., coneurre,d.  