
    Fred H. Swift, Appellant, v. George P. Finnigan and Minnie Finnigan, his Wife, Respondents, Impleaded with Others.
    
      Stay of a mortgage foreclosure, pending a litigation between two of the defendants as to their rights in the mortgaged premises—it is not justified by proof that thefoi'eelosure was begun at the instance of one of such defendants.
    
    The fact that the plaintiff in an action to foreclose a mortgage, although he purchased the mortgage with his own money, did so, and commenced the action to foreclose it, at the instance of one of the defendants therein, who was engaged in a litigation with one of his co-defendants in reference to their respective rights in the mortgaged premises, does not justify the granting of an order staying the proceedings in the foreclosure action until the determination of an appeal to the Court of Appeals from a judgment rendered in the action between such co-defendants.
    Appeal by the plaintiff, Fred II. Swift, from an order of the Supreme Court, made at the Chenango Special Term and entered in the office of the clerk of the county of Chenango on the 20th day of January, 1900, staying all proceedings in the action on the part of the plaintiff until the decision by the Court of Appeals of an appeal pending in that court in an action wherein Gage E. Tarbell is plaintiff and George P. Finnigan and Minnie Finnigan are defendants.
    This action is commenced to foreclose a mortgage given September 29, 1893, by the defendants Annie I. and William M. Wilson to Cornelius J. Russell, on 172^%- acres of land, described in the ' complaint.
    In March, 1896, the Wilsons conveyed to James Hill all of such mortgaged premises. Subsequently, and on September 30, 1898, the mortgagee, Russell, assigned such mortgage to the plaintiff, Swift, who, on June 30, 1899, commenced this action for the foreclosure of the same.
    The defendant Finnigan claims that in March, 1897, he entered into an executory contract with said Hill for the purchase by him of eighty-five acres of such premises, and that he entered into possession thereunder ; that he subsequently applied to the defendant Tarbell for a loan to enable him to pay the purchase price thereof, and that it was subsequently, and in substance, agreed between them as follows: That Tarbell should purchase and take from Hill a conveyance of the whole premises and assume the payment of the mortgage thereon, and that he should then execute to Finnigan a written contract for the sale to him of such eighty-five acres for a price and upon terms agreed upon between them. Finnigan further claims that, in pursuance of that agreement, he transferred to Tarbell the written contract which he had taken from Hill, and that Tarbell was thereby enabled to procure, and did procure, from Hill a conveyance of all of the premises, as aforesaid.
    Tarbell, on the contrary, claims that he purchased Finnigan’s contract with Hill, and paid him for it; and that there was no agreement between them by which he was to contract to sell to Finnigan any portion of the premises.
    Tarbell brought an action against Finnigan, among other things, to recover possession of the premises, and Finnigan set up as a defense the claim above stated. Such action was tried at Special Term and a decision was rendered for Tarbell, determining, in effect, that no such contract as Finnigan claims was made, and that he had no equity whatever in the premises. Hpon appeal to this court, such decision was affirmed (Tarbell v. Finnigan, 35 App. Div. 624), and ■an appeal therefrom was taken to the Court of Appeals, and is now pending therein.
    The defendant Finnigan, in the action now before us, sets up as a defense to the foreclosure of this mortgage that Swift holds and is foreclosing the same simply as the agent of Tarbell, and that Tarbell is the real party in interest. And he further sets up the same facts and claim which he had set up, and upon which he had been defeated, in the action brought by Tarbell against him, as above ■Stated. Hpon such issue he made a motion at Special Term that the proceedings in this action be stayed until the determination of the appeal now pending in the Court of Appeals. The Special Term made an order granting such stay, and from that order this iqypeal is taken.
    
      FranJclm Pierce, for the appellant.
    
      A. D. Wales and Roger P. Olarlc, for the respondent.
   Parker, P. J.:

If it be a fact that Tarbell is the real owner of this mortgage and is foreclosing the same in the name of Swift, I think the court, in the exercise of its discretion, would have the power to stay the proceedings until the determination of the appeal now pending in the Court of Appeals. Indeed, it might stay the proceedings herein until the final determination of that action, for the issue there being tried is the same one that Finnigan tenders here; and in the event supposed, it would be between the same parties, viz., Tarbell as plaintiff and Finnigan as defendant.

But if Swift, the plaintiff here, is the owner of this mortgage and is acting in his own right, and not as the mere agent of Tarbell, I am of the opinion that the proceedings in this action should not be .stayed until the decision of the pending appeal. (Dolbeer v. Stout, 139 N. Y. 486.) And such seems to have been the opinion of the judge at Special Term, as appears from his written opinion in the record before us.

Upon the affidavits presented to him, such judge concluded that Tarbell was the real party in interest, and that Swift was acting simply as his agent, and granted the stay asked for.

I cannot concur in the conclusion which he reached in that respect.

Both Swift and Tarbell make affidavit that Swift purchased this mortgage with his own money, and it is plain that the assignment is to him absolutely. No affidavit contradicts this statement, and I can discover no fact in the record negativing it. I am of the opinion that we are not at liberty to reject that statement upon the suspicion that it is untrue.

It is undoubtedly true that Swift is willing to aid Tarbell all he can in his controversy with Finnigan, and from the affidavits we may easily conclude that Swift purchased the mortgage at Tarbell’s' suggestion and that he commenced this foreclosure because Tarbell desired him to. But it is conceded that the mortgage is a good security and. a desirable investment for any one to make; and, even though Swift did purchase it at Tarbell’s suggestion, yet, if he paid his own money for it, he is the legal owner thereof; he is the real party in interest in this action and may prosecute or not, as he alone shall desire.

Now concede that he is inspired to commence and force this action by the desire to assist Tarbell, he is, nevertheless, exercising no more than his strict legal right. He owns the mortgage debt, and it is his right to have the mortgaged premises sold in satisfaction of it. And, the mortgage being past due, it is his right to have them sold as soon as the usual and regular form of proceedings will allow. The fact that he is influenced by an unworthy motive to demand his money does not at all affect his legal rights. (Morris v. Tuthill, 72 N. Y. 575.)

Of course, if Finnigan had any equity as against Tarbell in any part of such premises, he might ask to have such equity recognized and protected so far as the order of sale is concerned; but, to stay the whole proceeding — to prevent a sale — for an indefinite period until he shall be enabled to establish at the end of a litigation between himself and Tarbell whether or not he has such an equity, is a right to which he is not entitled.

If his suit with Tarbell had never gone to judgment, and he was not thereby barred from proving his claim in this action, yet I do not understand that he would be allowed to set it up and stay the plaintiff’s proceeding therein while he was litigating such claim to a final determination with his co-defendant. (Mutual Life Ins. Co. v. Cranwell, 10 N. Y. Supp. 404; Kay v. Whittaker, 44 N. Y. 565 ; Bradford v. Downs, 24 App. Div. 97; Smith v. Hilton, 50 Hun, 236, 239.) And, if this claim of Finnigan’s is not one that he can so litigate in this action, he clearly is not entitled to the stay which he desires.

I am, therefore, of the opinion that the affidavits do not warrant the conclusion that Tarbell is the real plaintiff in interest in this action. On the contrary, they show that Swift is the owner and has the absolute control of such mortgage, and, as against him, Finnigan is not entitled to the stay which he has obtained.

The order should be reversed, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements and motion denied.  