
    Cohen v. Lane et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    1. Mortgages—Foreclosure—Parties—Assignor.
    In an action by the assignee of a mortgage to foreclose, the assignor is not a necessary party for the purpose of establishing any defense to the mortgage.
    2. Same—Party in Interest.
    Nor does such assignor become a necessary party because it is alleged that he is the real party in interest. • '
    Appeal from special term, New York county.
    Action by Byron W. Cohen against Augustus R. Lane and others, brought for the foreclosure of a mortgage. A motion was made by James M. Hill, one of the defendants, to have the assignor of the mortgage, Andrew Dam, Jr., brought in as a party. From an order denying such motion Hill appeals.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Simon Fleisohman, for appellant. James M. Townsend, Jr., for respondent.
   Van Brunt, P. J.

The defendant Hill, having intruded into an action in which his company does not seem to have been wanted, now proposes to drag in another defendant, in order that he may indulge in some litigation with him at the expense of the plaintiff. The ground upon which he claims that the defendant Dam should be brought in seems to be that there is a defense to the mortgage which is sought to be foreclosed, and that the said Dam, and not the plaintiff, is the real party in interest. Whatever defenses there may be to the mortgage exist as well against the plaintiff, whether the proposed defendant Dam is brought in or not. Therefore, for the establishment of such defenses, Dam is not a necessary party. Neither is he a necessary party to the controversy as to who is the real party in interest. It is urged that Dam should be compelled to meet that allegation. It seems to us that it is for the allegator to prove the truth of his allegation, as against the plaintiff, and, if he does, he will succeed, Dam in or Dam out. There therefore seems to be no reason why Dam should be brought in by the plaintiff, as a complete settlement of the plaintiff’s rights can be had without his presence, and the defendant Hill can assert any rights which he may have as against this foreclosure, whether Dam is a defendant or not. The order should be affirmed, with $10 costs and disbursements. All concur.  