Burlingame v. Parce

The question of the right of Burlingame - as the assignee in bankruptcy to sue in this court, is considered on the appeal from the order in No. 1, appointing a receiver; I here assume such right ¶ to exist.

I must also assume that Burlingame, having still an interest ia *151fclie mortgage, liad a right to foreclose it. (Simson v. Satterlee, 61 N. Y., 657; Norton v. Warner, 3 Edw. Ch. [m. p.], 106.) It was transferred as collateral for an amount less than, its face; and the pledgor under such circumstances, ought certainly to have the right to protect himself, although the pledgee should not wish to foreclose, and the pledgor ought not to be left to the remedy of tender or repayment. No authority is cited requiring this.

Where two suits are commenced, and the subject of the action and the parties are the same and the entire relief sought for in the one can be obtained in the other, the one last brought should be stayed. (People v. Northern R. R. Co., 53 Barb., 98; McCarthy v. Peake, 18 How., 138.) This doctrine applies to the present case. The bank having refused to join with its co-owner, cannot now. complain. None of its rights will be lost. It is entitled to be first paid, the fund being realized the court will make the proper disposition of it.

I think the order should be reversed and the proceedings in No. 2 stayed until the determination of No. 1, with ten dollars costs and disbursements.

Order of Special Term reversed and proceedings in No. 2 stayed until the determination of No. 1, with ten dollars costs and disbursements.