
    Abbey Investing Corporation, Plaintiff, v. 344 Lafayette Avenue, Inc., et al., Defendants.
    Supreme Court, Special Term, Kings County,
    May 7, 1959.
    
      Wapner & Rankow for plaintiff.
    
      John Braslow for James D. Lassiter, defendant.
   Miles F. McDonald, J.

Motion to strike the answer of the defendant Lassiter on the ground that no action is pending between the parties granted.

On or about March 11, 1959 plaintiff commenced an action to foreclose a mortgage covering certain real property within the County of Kings and a Us pendens was filed in the office of the Clerk of the County of Kings on the 12th day of March, 1959. The defendant Lassiter is named as a party defendant to said action by virtue of the fact that he was the original obligor on the bond and mortgage sought to be foreclosed although he was not at the time of the commencement of the action otherwise interested in said premises. On March 13, 1959 the summons and complaint were served on one defendant, Adele Singletary. Neither the defendant Lassiter nor any other defendant in the action was ever served with a summons and complaint. Thereafter the defendant Singletary and other persons interested in the equity of redemption in said premises, made necessary arrangements to refinance the first mortgage on said premises and to satisfy the second mortgage held by the plaintiff, a new first mortgage having agreed to be made by the Brevoort Savings Bank. At the time of closing of the new mortgage transaction the plaintiff produced the necessary documents in satisfaction of the second mortgage held by it and paid an agreed sum of $2,529.14 in connection therewith. At the time of the closing, the plaintiff executed and delivered to the representatives of the owner of the premises and the new first mortgagee, a stipulation and a discontinuance of the action and to the cancellation of the Us pendens previously filed. In addition thereto, it furnished an affidavit of regularity setting forth that only the defendant Singletary had been served with the summons and complaint in the action. Through some inadvertence on the part of someone representing the defendants or of the title company or other person representing the new first mortgagee, said stipulation was not signed by the defendant Singletary. Thereafter the stipulation, affidavit and a proposed order canceling the lis pendens were filed in the office of the County Clerk of Kings County apparently by the Guaranteed Title and Mortgage Company on March 24, 1959 and was accepted by the County Clerk, although the order had not been signed by a Justice of this court.

It is to be noted, that the defendant Singletary does not join in opposing the plaintiff’s motion, nor does she in any way repudiate the stipulation of settlement.

Thereafter and on or about April 2, 1959 the defendant Lassiter, although named as a party to the action, but who had never been served with the complaint in this action, sought to interpose an answer setting up a defense and counterclaim. It is elementary that up until the time the defendant Lassiter was served with the summons and complaint in the action, the plaintiff was free to discontinue said action without regard to this defendant and without his consent. The entry of the order of discontinuance was a mere formality. The action insofar as the plaintiff was concerned, was terminated by the execution of the stipulation of discontinuance. The defendant Lassiter is not without remedy however. He is free to commence any action that he may see fit for the relief sought in his answer and proposed counterclaim.

Settle order.  