
    Poughkeepsie Savings Bank, Respondent, v. Extension Development Company and Others, Defendants, Impleaded with Frank O. Reisler, Appellant. Glens Falls Insurance Company, Respondent, v. Extension Development Company and Others, Defendants, Impleaded with Frank O. Reisler, Appellant.
    (Actions Nos. 1, 2, 3 and 4.)
    (Actions Nos, 1, 2, 3 and 4.)
    Second Department,
    December 30, 1912.
    Foreclosure — failure of defendant to answer or appear on motion to amend complaint — interest in rents—right to vacate or set aside judgment.
    A complaint in a suit to foreclose a mortgage on real property alleged that B., one of the defendants, was made a party because of a claim that he had some interest in the property. Said defendant, although served with the complaint, failed to answer. Subsequently the complaint was amended by alleging that the plaintiff had agreed with other defendants, who were trustees, to postpone the foreclosure if they would apply the rents of the property to the payment of the taxes and interest on the mortgage, but that they have failed to apply the rents and kept them for their own use. The defendant B. concedes that he had no defense to the suit as originally brought, hut claims that he had no1 notice of the motion to amend the complaint; that the amended complaint was never served upon him, and that the judgment restrains him. from asserting an alleged claim to the rents which are sought by the judgment to be applied to the payment of the mortgage.
    
      
      Held, that the defendant R. has no right to have the judgment vacated or set aside; that his interest in the rents was represented by the trustees, who were properly before the court, and he may assert his claim against them.
    Appeal by the defendant, Frank 0. Reisler, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 28th day of May, 1912, denying an application to have the several judgments entered in the above-entitled actions vacated and set aside.
    
      George E. Brower, for the appellant.
    
      Hugo Hirsh, for the respondents.
   Woodward, J.:

This action was brought to foreclose eight mortgages, first liens upon certain real property on New Utrecht avenue. The mortgages were all made at the same time to the United States Title Guaranty and Indemnity Company, were for approximately $12,500 each, and four of them were assigned to the Glens Falls Insurance Company and the other four to the Poughkeepsie Savings Bank. In August, 1911, four separate actions were brought by the Glens Falls Insurance Company, and four others by the Poughkeepsie Savings Bank for the foreclosure of these several mortgages. These several actions were against the Extension Development Company and other defendants, including the defendant Frank 0. Reisler. The complaint alleged that the defendant Frank 0. Reisler was made a party because of a claim that he had some interest in the'property, and was in the usual form. The complaint was served upon Reisler on the 15th of September, 1911, and no answer was interposed on his behalf. Subsequently,, and on the 26th day of December, 1911, the complaint was amended by alleging upon information and belief “that during the month of January, 1911, the defendants, Audley Clarke, William L. Newton, Charles E. Robertson and Edwin M. Houghtaling, trustees, agreed with plaintiff to apply said rents toward the payment of taxes on the property and the interest on the mortgage held by the plaintiff if the plaintiff would postpone bringing an action to foreclose said mortgage; that in reliance on said promise plaintiff did postpone such foreclosure and said defendants collected large amounts of rent of said premises, but that, although due demand therefor has been made, they have refused to apply said-rents to the payment of the taxes on said property or the interest on the said mortgage, but have kept them for their own use.” A proper prayer for relief was added, and the defendant Reisler urges upon this appeal that he had no notice of the motion to amend the complaint; that the amended complaint was never served upon him, and that the judgment as entered restrains him from asserting his rights as against the parties to the action, it being claimed that he is a part owner of • the rents which are sought to be applied by the judgment to the payment of the mortgages.

We think the learned County Court properly refused to vacate this- judgment." The amendment of the complaint, bringing in the trustees, did not affect any substantial rights of the defendant Reisler. . He concedes that he had no defense as against the action originally brought, and whatever his interests may have been in the trust fund, that interest was represented by the trustees, and there, is no suggestion that they were not properly before the court. The judgment forecloses the mortgage and cuts off the liens against the property, but it does not prevent the defendant Reisler from asserting any rights which he may have as against the trustees, if they have failed in the discharge of their duty to him.

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

Jenks, P. J., Thomas; Carr and Rich, JJ., concurred.

Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.  