
    Julia G. Morgan and Clara L. Griffin, as Executrices, etc., of Mary W. Griffin, Deceased, Appellants v. George Waters, Respondent.
    Third Department,
    November 13, 1907.
    Tort — waste impairing security of mortgage — pleading a right of action not lost by failure to raise issue oh foreclosure.
    A complaint which iq substance, alleges that after the execution and delivery of a -mortgage, the defendant, a third person, knowing tha-c the '.mortgage was unpaid, entered upon the lands and committed waste with an intention to diminish the security and that the plaintiff cannot collect a deficiency judgment from the mortgagors, who were insolvent- to the knowledge of the defendant, states a cause of action.
    Such action is not strictly an action, for waste and may he maintained against, a stranger to the title, the Code provisions governing actions for waste not ' being applicable.
    Although the defendant committing the waste upon the mortgaged premises was made a party to the action of foreclosure, the plaintiff in- that action -was not bound to assert a claim founded in tort against the defendant-for maliciously impairing the security, for he had a fight to wait and see whether the pro- . ceeds of the foreclosure would satisfy the debt, and. moreover a plaintiff is never required to join actions in tort and on contract under a penalty of - forfeiture of either’ right of action.
    Appeal by -the plaintiffs, Julia G. Morgan and another, as executrices, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warisen on thé' 1st day of May, 1.90ft, upon- the dismissal of the complaint by direction of the court upon the opening of the case at the Warren Trial Term.
    The original plaintiff in this action was Mary W. Griffin, who died during the pendency thereof. Julia G. Morgan and Clara L. Griffin, as executrices of her last will and testament, were duly substituted as plaintiffs herein.
    
      Charles It. Patterson, for the appellants..
    
      W. E. Yoúng [E. A. Pratt, of counsel], for the respondent.
   Smith, P. J.:

Plaintiffs’ complaint was dismissed at the opening of the trial, upon the ground that a cause of action was not therein alleged. The sole question, then for our determination is as to the correctness of this holding. In the complaint it is alleged that about, the 5th day of May, 1890, for the purpose of securing the sum of $500 loaned to thorn by Mary W. Griffin, plaintiffs’ testatrix, Starling Waters and Elizabeth Waters, the father and mother of the defendant, executed and delivered to the said Mary W. Griffin a bond, whereby they bound themselves to pay the said sum three years from the date thereof, with interest payable annually, and, as security for the payment of said indebtedness, the said Starling Waters and Elizabeth Waters executed, a mortgage upon certain property described in the complaint; that said mortgage became due, was foreclosed, -the property sold, and a deficiency arose upon the sale thereof of $317.45; that Starling Waters died intestate, without projierty, and that Elizabeth Waters was insolvent, so that it was impossible to collect the said deficiency judgment from the mortgagors. It is further alleged that during the fall of 1903 and the winter and spring following, while this mortgage was a lien upon the said land, the.defendant.George Waters unlawfully and fraudulently entered upon the above premises and cut and removed standing timber of the value of over $400; that thereby the mortgage security, of th‘e said Mary W. Griffin was impaired to the extent of $317.45, the amount of the deficiency judgment. It is further alleged that the said defendant well knew of the existence of the mortgage of Mary W. Griffin, and the amount thereof, and that the same was wholly unpaid, and that he well knew that by committing said -waste he was impairing and injuring said Mary W. Griffin’s security and depreciating the value of said premises to such an extent that the same would be insufficient to secure her against loss of a large portion of the mortgage debt. ■ It is further alleged that defendant knew that the mortgagors were insolvent, and intended by the commission of said acts to deprive Mary W. Griffin of a large portion of her security, and appropriate the same to his own use.

That these facts state a cause of action would seem to be held by the following authorities: Van Pelt v. McGraw (4 N. Y. 110) ; Ogden Lumber Co. v. Busse (92 App. Div. 143) ; Carpenter v. Manhattan Life Ins. Co. (93 N. Y. 552) ; Yates v. Joyce (11 Johns. 136).

Respondent argues that an.action of waste cannot be maintained against a stranger-; but this is not strictly an action of waste. Under the old forms of action it would be called an action of trespass on the case. In Livingston v. Haywood (11 Johns. 429) the action of waste is recognized against. the tenant, but it is held that a reversioner may have an action of trespass against a stranger. The limitations of the Code, therefore, applicable to an action of waste brought thereunder do not in any way limit plaintiffs’ right of action here. ' , .

It is further contended that this defendant Avas a party defendant in the action to foreclose the • plaintiff’s mortgage; this claim should have-been there asserted, and that by failure to assert the same in that action the claim has been Avaived.-

We are of opinion, however, that the plaintiff was not bound there to assert this claim. She might wait and see first whether the property would not sell for sufficient to satisfy the mortgage lien before she brought this action in tort against the defendant for maliciously impairing the security. A plaintiff is never required to join actions in tort and contract, upon penalty .of -forfeiture of either right of action.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  