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United States Trust Co v. Schliep

31 Abb. N. Cas. 52 Court N. Y. Supreme Court, Second District, Special Term; English

Delivered by Cullen, J.

Contents

Majority

p. 52
UNITED STATES TRUST CO OF N. Y. v. SCHLIEP.
N. Y. Supreme Court, Second District, Special Term;
November, 1893.

Headnote

Amendment; judgment^ After sale under foreclosure, the judg- • ment cannot be amended by inserting a provision for the payment of the deficiency, although the complaint demanded judgment therefor, and defendant had appeared and waived service of all papers except notices of sale and surplus, and made, default in pleading.
Motion to amend a judgment of foreclosure and sale.
Action by United States Trust .Company of New York' as substitute trustee, etc., against Louis C. Schliep and others.
This action was for the foreclosure of a mortgage made-by the defendant, Schliep, upon premises in Brooklyn. The complaint,which demanded that he be adjudged to pay-any deficiency which might remain, was duly served on-him ; he appeared by his attorney, Chas. Coleman Miller,, and waived service of all papers except notices of sale and-surplus, and thereafter made default in pleading. Judgment of foreclosure and sale herein was entered on September 26, 1892, and through a clerical error, provided for no judgment of deficiency against said defendant.. Under such judgment the premises were sold by the sheriff on October 26, 1893, and bought 'in by the plaintiff for $11,250. The deficiency arising on such sale amounted to $435.34.
This motion is made to have the judgment amended by inserting therein a provision that the defendant, Schliep,. pay any deficiency which may remain.
Edward W. Sheldon, for the motion.
I. The relief sought for is within the power of the court to grant and
p. 53
"has been allowed before in similar cases (Citing Code Civ. Pro. § 783; Sprague v. Jones, 9 Paige, 395; Produce Bank v. Morton, 67 N. Y. 199 ; Wood v. Martin, 66 Barb. 241 ; N. Y. Ice Co. v. Northwestern Ice Co., 21 How. Pr. 296 ).
II. A judgment of foreclosure and sale is necessarily interlocutory in character. The amendment sought by this motion would not, in ordinary chancery practice as ■followed in the Federal and many State courts, be needed, since the order granting a judgment of deficiency is customarily entered only after the amount of the deficiency -is ascertained on the filing of the master’s or sheriff’s report. Under the practice in New York, the direction for a deficiency in the foreclosure judgment is purely contingent, and its omission does not prevent the court from making a proper order as soon as the essential facts are acquired.
III. The amendment sought for in this action is in ■ furtherance of justice. The defendant Schliep was duly served with the summons and complaint; the complaint so served demanded a judgment of deficiency against him ; he appeared herein by attorney and waived service of all papers except notice of sale and as to surplus money ; he made default in pleading and the judgment with notice ■of entry was never served on him, although the notice of ■sale was.
Chas. Coleman Miller, opposed.
I. By entering judgment against defendant without decree of deficiency, ■plaintiff discharged him from personal liability (Citing Mutual Life Ins. Co. v. Hoyt, 15 Weekly Dig. 489).
II. Plaintiff’s motion is made too late ; it should have been made before sale (Citing Fleishhauer v. Doellner, 9 Abb. N. C. 372 ).
III. Courts can allow amendments only “ in furtherance of justice ” (Code Civ. Pro. § 723). To grant an application of this kind would be unjust and inequitable.
p. 54
The defendant's position is changed to his prejudice by-reason of plaintiff’s error, and an amendment should not be. allowed to the injury of the defendant. A defendant- has a right to rely ón the judgment of foreclosure and sale as. finally determining the issues and liabilities and rights of parties. If such judgment fails to provide for the payment by a defendant of a deficiency, he has no further concern in the matter, and is not interested in having the property sold to the best advantage or in buying it in himself to save a deficiency judgment.

I do not think this application should be granted after sale.

Motion denied.

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