
    Elizal Zundel v. Louisa Tacke et al.
    
    
      (Supreme Court, General Term., First Department,
    
    
      Filed January 23, 1888.)
    
    Parties—When one entitled to be made a party under Code Civ. Pro., §§ 447 and 452.
    An action was brought to foreclose a mortgage given to the plaintiff. The brother of the mortgagor, as heir and next of Mn, asked leave to appear and defend upon the ground that the mortgagor, his brother, was not indebted to the plaintiff in any sum whatever and that the mortgage was obtained by undue influence. Held, that the court properly granted the relief asked (Code Civ. Pro., 447 and 452); that the court must direct him to be brought in by a proper amendment.
    Appeal from an order giving leave to appear and defend.
    
      David Welch, for resp’t; D. S. Riddle, for appl’t.
   Brady, J.

The action is to foreclose a mortgage given to the plaintiff. The brother of the mortgagor, as heir and next of kin, asked leave to appear and defend upon the ground that the mortgagor, his brother, was not indebted to the plaintiff in any sum, and asserting in addition that she was his housekeeper, that he was infirm in mind and body for over a year prior to his death, sick and afflicted with paralysis and wholly under the influence of the plaintiff, whose children he supported while she lived with him. The court below granted the relief.

The Code, by sections 447 and 452, which were considered in two cases in this department, provides for the application made herein. By the former any person may be made a defendant who has or claims an interest adverse to the plaintiff, and by the latter where a person not a party to an action has an interest in the subject, or in real property the title to which may in any manner be affected by the judgment and makes application to the court to be a party, it must direct him to be brought in by proper amendment. The cases referred to are Haas v. Craighead (19 Hun, 396) and Earle v. Hart (20 Hun, 75), the latter of which was an action of foreclosure. If the mortgagor was not indebted to the plaintiff, or if the mortgage was obtained by undue influence, a good defense would be asserted, and if established would defeat the action.

The order appealed from therefore appears to have been properly made and should be affirmed, with ten dollars costs and disbursements of the appeal.

Van Brunt, P. J., and Daniels, J., concur.  