
    John J. P. Read, Respondent, v. Louis Knell, Impleaded, etc., Appellant.
    An assignment of a mortgage by an administrator of a deceased mortgagee to a third person, and by the latter to the administrator individually, is not void, but voidable at the election of the next of kin of the intestate ; and so, in an action by the administrator, in his own name as owner, to foreclose the mortgage, the mortgagor and his successors in interest may not controvert plaintiff’s title.
    In such an action the defendants pleaded a defect of parties, in that the next of kin of the deceased mortgagee were not made parties. It appeared that the only next of kin were plaintiff and a sister who died without issue. It was claimed that she married and left a will. The alleged will was admitted to probate, but the surrogate’s decree was reversed by the General Term, and the questions involved were sent to a jury for trial. At the time of the trial of the action these questions remained undisposed of, and no executor or administrator of the deceased sister had been appointed. The Special Term made no findings under the plea of defect of parties, but dismissed the complaint on the ground “ that the assignment of the mortgage was void. The General Term reversed the judgment and ordered a new trial without passing upon the question as to parties. Defendants appealed from the order giving the required stipulation. Held, that an order of affirmance and for judgment absolute on the stipulation was proper.
    Reported below, 69 Hun, 541.
    (Argued November 1, 1894 ;
    decided November 27, 1894.)
    Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made June 29, 1893, which reversed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term which granted a new trial.
    The nature of the action and the facts, so far as material,, are stated in the opinion.
    
      Adelbert Moot for appellant.
    Plaintiff’s complaint was-properly dismissed by the trial court. (Code Civ. Pro. §§ 446, 447, 448, 449, 452; Simpson v. Satterlee, 64 N. Y. 657; Sherman v. Parish, 53 id. 483; Van Epps v. Van Dusen, 4 Paige, 64.)
    
      
      Edmund P. Cottle for respondent.
    The court at Special Term, erred in deciding that the assignments were void as against the defendants, who had no interest in the estate of Elizabeth Read. Louis Knell had no interest entitling him to question the acts of the administrator. (Perry on Trusts, § 205 ; Forbes v. Halsey, 26 N. Y. 65 ; Harrington v. Brown, 5 Pick. 519 ; Andrews v. Durane, 18 N. Y. 496; Jennison v. Hapgood, 7 Pick. 1; Hawley v. Cramer, 4 Cow. 719; Ward v. Smith, 3 Sandf. Ch. 592; Baker v. Read, 18 Beav. 398 ; Musselman v. Eshelman, 10 Barr, 394; Bell v. Webb, 2 Gill, 164; Todd v. Moore, 1 Leigh, 457.) The plaintiff is the real party in interest. (Sheridan v. Mayor, etc., 68 N. Y. 30; Morris v. Tuthill, 72 id. 575 ; Peterson v. C. Bank, 32 id. 21.) The court at the trial term did not pass upon any other question than the validity of the assignments. If its decision on that point was erroneous then the judgment was properly reversed and a new trial granted, and the decision of the General Term should be affirmed and judgment absolute given for the plaintiff. (Lake v. Nathans, 67 N. Y. 589; Godfrey v. Moser, 66 id. 250.) The question as to whether representatives of E. A. S. Read Rockwell were necessary parties or not, is not one necessary to be considered on this appeal. (Code Civ. Pro. § 723.) There was no sufficient plea in respect to a defect of parties. For a successful plea in abatement, the plea must show that there is some person living who is entitled to be joined. (1 Chitty on Plead. 452; Donovan v. Clark, 76 Hun, 339; People v. Keyser, 28 N. Y. 226.) As the holder of the mortgage, the plaintiff might sue alone, even though he held the mortgage in part for the benefit of another. It is a contract running to him; he sues upon the mortgage and recovers on it. (Code Civ. Pro. § 449.) The court may determine the controversy as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights. (Code Civ. Pro. § 452.) The plaintiff is administrator of Elizabeth Read’s estate, has given security for its assets, and if there were any one but himself interested in it, he would be equally accountable for the value of the estate that came to his hands whether he assigned the mortgage or collected it as an individual or as administrator. No one is prejudiced or defrauded by either course. (In re Pruyn, 114 N. Y. 544.) Defendant has nothing to do with the good faith of the assignment or the effect of it upon the rights of others. The assignor was, as to the defendant, the legal owner of the mortgage; he is estopped by his assignment from denying its validity, and the defendant will be protected in paying to the assignee under a judgment in his favor. (Sheridan v. Mayor, etc., 68 N. Y. 32 ; Peterson v. C. Bank, 32 id. 1; Morris v. Tuthill, 7.2 id. 575 ; 35 Hun, 544.)
   Finch, 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 seventeen hundred dollars, 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; Fortes 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 he 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 material 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 were 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 interjjose.

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

All concur.

Ordered accordingly.  