APPEAL by the plaintiff, the North Central Realty Company, 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 6th day of May, 1911, denying the plaintiff's
motion for the appointment of a referee to compute the amount due in a foreclosure action and staying its prosecution until the termination of a suit to partition the same premises.
Herbert Reeves, for the appellant.
J. A. Seidman, for the respondents.
This action was brought to foreclose four mortgages upon real estate. Upon an affidavit showing that the time to answer or demur had expired as to all of the defendants, and that none of them had answered or demurred, the plaintiff, upon notice to all persons who had appeared, moved for the appointment of a referee to compute the amount due. The motion was denied and the plaintiff stayed from further prosecuting the action until the termination of another action brought by one Markow for the partition of the premises covered by the mortgages, and the plaintiff appeals.
It appears that after the commencement of this action Markow (not a party to it) commenced an action to partition, and, after the plaintiff had moved for the appointment of a referee to compute, Markow moved in the partition action to stay the prosecution of this action until after the termination of that one. The motions were heard on the same day, as appears from the memorandum of the learned justice who heard them, and this plaintiff's motion resulted in the order appealed from. The motion for a stay was in the partition action, and, if proper to grant at all, could only be granted in the action sought to be stayed. Neither the plaintiff nor Markow had made a motion for a stay in this action, and it was improper to incorporate a provision to that effect in the order.
In Belasco Co. v. Klaw (98 A.D. 74) this court, speaking through Mr. Justice O'BRIEN, said: 'The inherent power of the court to stay proceedings or control the trial of an action is one which must be exercised in the action itself, and where it is sought to enjoin parties from proceeding in another action such relief must be by injunction in an action where by formal prayer it is demanded. Neither under the provisions of the Code of Civil Procedure nor by sanction of any authority to which our attention has been called is the practice permitted
to apply in an action brought for an entirely different purpose to stay the trial of another action.'
And to the same effect are Raymore Realty Co. v. Pfotenhauer-Nesbit Co. (139 A.D. 126); Gilroy v. Everson-Hickok Co. (120 id. 207).
There was nothing before the court in this action upon which an order staying its prosecution could be predicated. None of the parties had asked for a stay, and not a single fact was set forth justifying it. The only semblance of a justification for the order is the fact that in the affidavits submitted in support of the application in the partition action facts are claimed to have been shown which would have justified the court in enjoining the prosecution of this action. If it be true that such facts did there appear, then the order enjoining this plaintiff's proceeding should have been in that action and not in this. The court could not use the papers submitted on the motion in that action in determining the disposition to be made of the motion in this action, nor can the order here be sustained by considering the papers in that action, notwithstanding they are contained in the record. If the prosecution of this action could be enjoined, it could only be by injunction in the partition action, where such relief was demanded. There is no authority, so far as I have been able to discover, for the practice here adopted. It is conceded that the plaintiff owns the mortgages in question. They are past due, and it has a legal right to foreclose and sell the premises in satisfaction of the debt. It is proceeding in the way pointed out in the Code to collect the debt, and is entitled to have the premises sold as soon as the procedure in such actions will permit. Whether it is influenced by a sinister or unworthy motive in foreclosing at this time is not of the slightest importance, because such motive cannot affect its legal rights. (Morris v. Tuthill, 72 N.Y. 575; Swift v. Finnigan, 53 A.D. 76.)
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion appointing a referee to ...