This action is brought to foreclose a mortgage upon real estate. At the time it was commenced there was due upon the bond, the payment of which the mortgage was given to secure, the sum of $9,000, besides interest, taxes, water rents, etc., amounting to about $1,200 additional. The only allegations of the complaint relating to the appellant Schlanger are those contained in the 10th and 11th paragraphs. The 10th paragraph alleges that on the 7th of May, 1909, Schlanger entered into an agreement with the plaintiff, under seal, by which he bound himself, his heirs, executors and administrators in the sum of $1,000 “to be paid unto the plaintiff herein, which agreement should be void if the defendant Samuel Leder, his heirs, executors, administrator or assigns shall pay or cause to be paid unto the plaintiff herein, .the sum of nine thousand ($9,000) dollars, which was the remaining unpaid balance on the 7th day of May, 1909, on the bond and mortgage held by the plaintiff herein, together with the interest.” The 11th paragraph recites that by said agreement all of the covenants and conditions contained in the mortgage were made a part thereof with like force and effect as if the same were specifically set forth at length in the agreement. The complaint contains the usual prayer for the sale of the mortgaged premises and if the proceeds of the sale were not sufficient to pay the entire debt, then for a deficiency judgment against the defendent Leder. Schlanger demurred to the complaint upon two grounds: (a) That causes of action were improperly, united, in that a cause of action in equity for the foreclosure of a mortgage was united with a separate and distinct cause of action at law to recover a sum of money; that the equity action affected all of the defendants except himself and that *128the action at law affected only him; (b) that the complaint did not state facts sufficient to constitute a cause of action against him. After the demurrer had been interposed, the plaintiff' moved on the pleadings for judgment against Schlanger. The motion was granted and Schlanger appeals.
I am of the opinion that the order should be reversed because, first, the alleged claim for $1,000 against Schlanger, as pleaded, is not of the character which under section 1621 of the Code of Civil Procedure enables the plaintiff to make him a party defendant. This section of the Code provides that “Any person who is liable to the plaintiff for the payment of the debt secured by the mortgage may be made a defendant in the action, * * To enable the plaintiff to make .Schlanger a party defendant it was incumbent upon her, by a proper allegation of the complaint, to show that he in some way had become obligated to pay, either the whole or a part of the mortgage debt. The facts, as pleaded, do not so show. . The agreement is under seal and a consideration is presumed, but giving to it all the force that can be from the language used, as I read it, it is that Schlanger will pay $1,000 in case Leder fails to pay the $9,000, that is, the full amount due. If such payment be made, then the agreement is to be void. The fast that there is to be read into the agreement all the covenants and conditions contained in the mortgage does not change it, because they simply apply to Leder. It nowhere appears by any allegation of facts that the $1,000 to be paid by Schlanger is to be applied towards the reduction of the mortgage debt or that he in any way assumed or agreed to pay such debt, or any part of it; on the contrary, his agreement is to pay the $1,000 if Leder fails to pay the $9,000, that is, the mortgage debt. The obligation to pay the $1,000 is a separate and independent agreement and the obligation to,pay is separate and distinct from the mortgage debt and in no way dependent upon it, except Leder’s failure to pay. This not only appears from the facts pleaded, but also from the judgment demanded, as well as the judgment directed. The judgment demanded against Leder is that the mortgage be foreclosed, the property sold, and that the plaintiff have judgment for deficiency, if any, against him. A judgment for deficiency is not asked against Schlanger; *129on the contrary, the only judgment asked against him is for the $1,000 specified in the agreement, and this is the judgment which the order appealed from gives. If this view he correct, then two causes of action are improperly united, one an action in equity to foreclose a mortgage upon real estate and the other an action at law upon an express agreement to pay a sum of money. The court at Special Term, in ordering judgment for the plaintiff on the -pleadings, as appears from the opinion delivered, relied upon Robert v. Kidansky (111 App. Div. 475) and Morrison v. Slater (128 id. 467). Neither of these authorities, as I read them, is in point. In the Robert case the plaintiff sought to recover a sum of money, being the amount of deficiency on the sale of certain mortgaged premises. The complaint alleged that the defendants assigned the bond and mortgage in question to the plaintiff and ‘ in and by the said assignment for a good and valuable consideration, thereby guaranteed to the plaintiff in writing the collection of the said bond and mortgage.” The Morrison case simply held that where parties, who, on the assignment of a mortgage, guaranteed the payment of the mortgage debt, while not necessary parties to a foreclosure, are proper parties, as they may be held for a deficiency on the sale.
In the case now before us there are no facts pleaded showing that Schlanger promised to pay the mortgage debt, or any part of it, or any deficiency. He is not, therefore, as it seems to me, a proper party defendant under the section of the Code referred to.
Second, because the complaint does not state facts sufficient to constitute a cause of action against him, in that it contains no allegation that he has failed to pay the $1,000. (Krower v. Reynolds, 99 N. Y. 245; Lent v. N. Y. & M. R. Co., 130 id. 504; Conkling v. Weatherwax, 181 id. 258; Bremer v. Ring, 146 App. Div. 724.) But it is suggested—not by counsel — that the recovery against him can -be sustained inasmuch as the terms and conditions of the mortgage were a part of the agreement that he, in effect, thereby assumed and agreed to .pay $1,000 of the mortgage debt. But if his agreement be thus treated — which I do not think it should be — that does *130not aid the respondent,, because in that case in order to state a cause of action against him plaintiff had to allege non-payment.
In Krower v. Reynolds (supra), which was an action on a covenant to. pay a mortgage, Judge Andrews, speaking for the court, said: “ The complaint does not contain the averments necessary to a complete cause of action on the covenant. It alleges the making and the consideration of the covenant and that the defendant thereby became liable to pay the mortgage. But there is no breach alleged. This was necessary.”
As I read the- agreement it is to pay a specified sum of money if Leder failed to pay; in other words, an agreement for the payment of money under certain conditions, and if this be the. effect of it, then non-payment had tó be alleged.
In Lent v. N. Y. & M. R. Co. (supra) it was said: “It does not admit of controversy that upon an ordinary contract for the payment of money, non-payment is a fact which constitutes the breach of the contract and is the essence of the cause of action, and being such within the rule of the Code it should be alleged in the complaint.”
And to the -same effect is Conkling v. Weatherwax (supra), where it was said: “ In. an action upon contract for the payment of money only, where the complaint does not allege a balance due over and above all payments made, it is sufficient for the plaintiff to allege and prove a breach of the obligation by the non-payment thereof when it matured.”
In Bremer v. Ring (supra), recently decided by this court, it was said that in an action on contract to recover a sum of money only “ the authorities uniformly hold that it is necessary for the plaintiff in such an action to allege non-payment.” The complaint here tinder consideration Will be searched in vain for the statement of any fact showing non-payment by Schlanger, or the statement of any fact from which that can be inferred.
Tjpon both grounds, therefore, I think the order appealed from should be. reversed, the motion denied and the demurrer sustained. : '
Dowling, J., concurred.
Order affirmed, with ten dollars costs and disbursements.