Krower v. Reynolds

• Decision Date: 02 June 1885
• Citation: 99 N.Y. 245,1 N.E. 775
• Parties: KROWER and others, Ex'rs, etc., v. REYNOLDS.
• Court: New York Court of Appeals Court of Appeals

99 N.Y. 245

1 N.E. 775

KROWER and others, Ex'rs, etc.,

v.REYNOLDS.

Court of Appeals of New York.

Filed June 2, 1885.

Quincy Van Voorhis, for appellant, William H. Reynolds.

George F. Yeoman, for respondents, Alfred Krower and others.

ANDREWS, J.

Judgment in the action was recovered against the defendant upon his covenant in his deed from Shaw to assume and pay the mortgage on the granted premises, executed by Shaw to Capron. The trial judge, in substance, ruled that the complaint set forth two causes of action: one upon the covenant, and the other upon the deficiency judgment against Reynolds, founded on the covenant, rendered by the New Jersey court in an action for the foreclosure of the Capron mortgage, in which Reynolds was joined as a party defendant. The defendant insists that only one cause of action was set forth in the complaint, to-wit, a cause of action on the judgment, and that, the plaintiff having failed to prove a valid judgment against him, the complaint should have been dismissed. This presents the main question on this appeal. The allegations in the complaint are embraced in a single statement or count, and if it embraces two causes of action the pleading does not conform to the requirement of the Code, § 483. But an omission to separate two different causes of action in a complaint is a defect to be corrected on motion. If the defendant proceeds to trial without making his motion, the defect, being in a matter of form only, and not affecting a substantial right, will be disregarded. Code, § 723.

The question to be determined is whether the complaint in substance set forth two causes of action, or a cause of action on the judgment only. It alleges the making of the bond and mortgage by Shaw to Capron; an assignment to Oadkirk, the plaintiffs' testator; the subsequent purchase of the mortgaged premises by Reynolds, the defendant; the assumption by him of the mortgage, and his consent to pay the same in consideration of the purchase and conveyance; the subsequent commencement by Oadkirk of an action to foreclose the mortgagein the court of chancery in New Jersey, alleged to be a court of general jurisdiction, against Shaw, Reynolds, and others, by process duly issued and served on the defendants therein, in which action judgment was duly recovered by the plaintiff against Reynolds on the twenty-sixth day of October, 1877, for $5,053.78, on his liability on his covenant; the death of Oadkirk, and the appointment of the plaintiffs as his executors. The complaint concludes by demanding judgment against Reynolds for $5,053.78, with interest from October 26, 1877, to the date of the judgment.

It is to be observed that upon the facts stated in the complaint the covenant was merged in the judgment, and no subsequent action on the covenant could be sustained. This...