
    David Patton et al., Resp’ts, v. Maurice E. Townsend et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    Foreclosure—Parties.
    The complaint in an action of foreclosure alleged that defendant M. gave a mortgage to induce plaintiffs to give credit to a firm of which he was a member with E.; that the firm gave notes and a draft for an open account and further notes upon which R. and S. were endorsers, and which were protested for non-payment. Held, that a cause of action was stated against all the defendants, as M. and E. were personally liable for the •debt and R. and S., the endorsers, were proper parties, because they are ■liable for the payment of the debt, or some part thereof, secured by the mortgage.
    Appeal from order overruling demurrer to the complaint and •from the interlocutory judgment entered thereon.
    Action of foreclosure.
    
      Mortimer S. Brown, for app’lts; Jos. A. Burr, Jr., for resp’ts.
   Barnard, P. J.

—The complaint alleges that Maurice B. Townsend and Edward N. Townsend, together with John P. McEwan, were on the 18th of January, 1889, partners in the lumber business. That Maurice E. Townsend gave the mortgage in question to induce the plaintiffs to give credit to the firm on lumber and to secure payment of any balance due the plaintiff on the 1st of April, 1890. That on the 1st of January, 1890, the debt was $17,711.72, represented by two notes of $5,000 each and an open account for the balance. That at that date Maurice E. Townsend and Edward N. Townsend were the sole partners, having assumed .all the debts of McEwan & Co., and they applied for an extension of credit on their debt. That it was agreed to change the form of the debt. Maurice E. Townsend and Edward H. Townsend gave .a draft for $3,500 and their promissory note for $4,284.64, endorsed by the defendants Solomon Townsend and Robert Townsend. That these sums represented the open account of McEwan -& Co. That provision was made for renewal of the three notes upon certain payments and that the mortgage should remain as .security for the entire debt. That further credit was given to the partners Townsend, and Robert and Solomon Townsend endorsed the notes. That the notes were protested for non-payment. The •complaint clearly shows a mortgage given by Maurice E. Townsend to secure the plaintiffs for goods sold a firm of which he was a member. That the. debt is unpaid and that Solomon Townsend and Robert Townsend are endorsers upon notes given for a portion of the debt. A good cause of action is set forth against Maurice E. Townsend and Edward N. Townsend, as they are personally liable for the debt secured by the mortgage. The endorsers >on their notes, Solomon Townsend and Robert Townsend, are proper parties because they are liable to the plaintiffs for the payment of the debt, or some part of it, secured by the mortgage. Code of Civil Procedure, § 1627.

The order overruling the demurrer and interlocutory judgment ¡therein should be affirmed, with costs.

Cullen, J., concurs; Dykman, J., not sitting.  