
    Besse C. Clark, Appellant, v. Morris Levy, Respondent.
    First Department,
    February 5, 1909.
    Practice — motion, for judgment on pleadings after issue joined — equity — suit to redeem after foreclosure induced by fraud of mortgagee — when prior judgment no bar.
    The purpose of section 547 of the Code of Civil -Procedure, authorizing a motion for judgment on the pleadings after issue joined, is to obviate the necessity of waiting until trial to make such motion. But the rules are. the same as where the motion is made at trial; and the defendant is not entitled to j udgment if the complaint entitles the plaintiff to any relief, legal or equitable, even though the judgment demanded is not the precise relief to which he is entitled.
    A defendant by moving for judgment under said section admits every material allegation of the complaint.
    A complaint alleging in substance that the plaintiff having tendered the sum due on a mortgage pending foreclosure was induced to permit the sale to take ' place in reliance upon a promise by the mortgagee to buy the property on-foreclosure and reconvey to the plaintiff, which agreement he subsequently refused to carry out, whereby the plaintiff was deprived of a large equity in the premises, with a demand-that the sale be vacated, and the plaintiff be permittied to redeem, states a cause for equitable relief, but the judgment, of foreclosure is res adjudicata as to the amount due, including costs and disbursements.
    A defendant setting out the foreclosure and alleging that the judgment therein was a bar to the suit to redeem is not entitled to judgment on the pleadings.
    Appeal by the plaintiff, Besse C. Clark, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county'of New York on the 23d day of November, 1908, dismissing the. complaint and granting the defendant’s motion fora judgment on the pleadings, and also from a judgment entered in said clerk’s office on the 27th day -of November, 1908, pursuant to said order.
    
      Charles Fischer, for the appellant.
    
      Myron Sulzberger, for the respondent.
   McLaughlin, J.:

In her complaint the plaintiff alleges that on the 11th day of January, 1907, she executed and delivered to one Horowitz a bond under her hand and seal, conditioned to pay the s.um of $20,0,00 on the 1st of May, 1907, and as collateral security for the payment of such sum, with interest, at the time stated, she executed and deliy-' ered a mortgage upon the real estate described in the complaint; that the bond and mortgage were subsequently assigned to the defendant in this action, who commenced an action to foreclose the mortgage, which -resulted in a judgment of foreclosure and sale; that prior to the sale she duly tendered to the defendant the amount due upon the- bond, together with all interest, costs and disbursements due theréon;; that he then falsely and fraudulently, and with the iiitent of depriving the plaintiff of her right to redeem the premises from the lien of the mortgage, represented that she should wait until after a sale of -the premises in the foreclosure proceedings at which he Would become the purchaser, take the title, and then would réconvey the property to her upon payment of the amount tendered; that the representations thus made by the defendant — that he would reconvey the property — were false, in that he did not intend at that time to do so, and were made for- the- purpose of inducing the plaintiff to take no further proceedings in the matter until after the property had been sold, lie had taken title, and thereby deprived her of the right to redeem; that the plaintiff, relying upon these representations, did wait until after the premises were sold in the foreclosure proceedings, and title had been taken by the defendant, who is now the owner of record thereof; that the title was taken by the defendant on the 8th of October 1908, and on the following day she tendered to him the amount due, together with all the interest, costs and disbursements to that date, and requested a reconveyance, which lm refused, and still refuses to make; that the plaintiff’s equity in the premises over and above all incumbrances' thereon, including the mortgage foreclosed, is $84,000, of which she has, been deprived by reason of the fraud practiced upon' her by the defendant; that she was and is now able, ready and willing to pay the amount due the defendant for a reconveyance of the property to her. The complaint, among other things, demands that the sale of the property be vacated and set aside and an account be taken as to the amount due the defendant for principal, interest, costs and disbursements, and that the plaintiff may be at liberty to redeem said premises upon paymen t of whatever sum may be found due.

The answer denied the material allegations of the complaint, and as a separate defense set up the foreclosure action; the sale of the .premises thereunder; the purchase of the same by the defendant; confirmation of the referee’s report of sale; alleges that this plaintiff was represented in that action by an attorney who had notice of all the proceedings taken therein; and that the foreclosure action is binding and conclusive upon the plaintiff upon all the facts alleged in the complaint and is a bar to. this action.

After issue had been joined the defendant moved, under section 547 of the Code, of Civil Procedure, for judgment upon the pleadings. The motion was granted and the complaint dismissed, with costs. Judgment was entered to this effect, from which the plaintiff appeals. ■

The section of the Code referred to was added by chapter 166 of the Laws of 1908 and went into effect on the first of September of that year. It provides that if either party is entitled to judgment upon the pleadings the court may, upon motion, at any time after issue joined, give judgment accordingly. The purpose of the sectiom is to obviate the necessity of waiting until the trial to make such motion. But if made, the same rule must be applied that would be had had the motion been made at the trial. Where the defendant makes such motion it cannot be granted if the facts stated show that the plaintiff is entitled to any relief, either legal or equitable, even though the judgment demanded is not the precise relief to which he appears to be entitled. (Wetmore v. Porter, 92 N. Y. 76 ; Hotel Register Co. v. Osborne, 84 App. Div. 307.) By mabing the motion the defendant admits every material fact set out in the complaint.

Here, the defendant admits' that prior to the sale the plaintiff tendered to him the amount due together with the interest and costs of the foreclosure action; that instead of accepting it, as he was, legally obligated to do, and as this plaintiff could have compelled him to do, he induced her not to take proceedings to enforce her legal rights by compelling him to accept the amount tendered and give a satisfaction of the mortgage, or not to attend the sale and there protect her rights by representing that after he had obtained title he would reconvey to her upon receiving the amount tendered ; that the plaintiff, believing the representation made to her that lie would reconvey, took no proceedings to compel him to accept the amount tendered, permitted him to purchase at the sale and after he had acquired title she again tendered the amount due, principal, interest and costs of the foreclosure action to that time for a reconveyance, which he refused to give; and that her equity in the property, over and above all incumbrances thereon at the time the sale took place, was $84,000, which equity has been acquired by the defendant, by reason of the representations made to the plaintiff, and upon which she acted.

A court of equity would be of little use if, upon such facts, it refused to exercise its equitable powers to aid a party who had been thus deprived of his property. It may be that the plaintiff is not entitled to all the relief asked. She was represented in the foreclosure action by an attorney, and had notice of all the proceedings therein. The judgment in that action undoubtedly binds her as to the amount found due, including costs and disbursements. It is a. final adjudication upon that subject. But it does not determine the question of her right to redeem or get some relief from the defendant, who refuses to keep an agreement which results in her being deprived of $84,000. The sale, upon the facts alleged, is at least voidable and can be vacated and set aside if necessary as part of the relief in this action. I think, however, the facts alleged in the complaint are sufficient to show in the plaintiff a right of redemption from the mortgage, and the action should be treated as one for that purpose, and the plaintiff can have such incidental relief as may be necessary to accomplish the object. (Casserly v. Witherbee, 119 N. Y. 522.) . She may have judgment giving her the right to redeem upon payment of the judgment in the foreclosure action and the expenses of the sale.

For these reasons the judgment and order appealed from are reversed, with costs, and the motion for judgment denied, with ten dollars costs.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Judgment and order reversed, with costs, and motion for judgment denied,.with ten"dollars costs. Settle order on notice.  