Bouden v. Sire — 119 A.D. 194

Majority

p. 194

Milton L. Bouden, Appellant, v. Leander S. Sire, Respondent, Impleaded with Long Acre Square Building Company and Others, Defendants.

First Department,

May 17, 1907.

Headnote

Foreclosure — stay of execution denied.

When in an action to foreclose a mortgage upon a leasehold, the mortgagor does not appear and lias no claim .except an alleged right to a redemption from summary proceedings, and the value of the leasehold is rapidly decreasing ; ■ ■ while the arrears in rents and taxes are rapidly increasing, a stay of execution ■ upon an appeal which is apparently dilatory in character, , by one not a party to the mortgage, but merely claiming that it was given partly for his benefit, should- not be granted.

' Appeal by the plaintiff,.Milton L. Bouden, 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 23d day of April, 190L, granting the motion of the defendant, Leander S. Sire,; fór a reargumént of his motion for a stay of execution of a ■judgment- of foreclosure pending an appeal and granting such motion for a stay and fixing the amount of the undertaking.

jRoy all Victor of counsel, William J. Curtis with him on the brief \Emery H, Sykes, attorney], for the appellant.

Josiah Canter of counsel \_Franklin -Bien, attorney], for the respondent'.

The action was brought against the Long-Acre Square Building Company and others, defendants, to foreclose a mortgage given by the said company on a leasehold. The defendant corporation, the mortgagor, did not appear. .The defendant .corporation has no business and no" property, except the sum of $238.81 now in its treasury .as an unexpended balance, and an, alleged claim to a right of redemption from the summary proceedings under which it was dispossessed frorn the mortgaged leasehold premises by an order dated June 2, 1904.

The defendant Sire is not a party to the "mortgage being foreclosed. His claim is that the mortgage, while running ostensibly for the sole benefit of the plaintiff, was given nevertheless partly to secure him as well as the plaintiff. The default of the mortgagor corporation is not questioned.

The mortgage was given to secure payment of $47,748.07 with interest from May 5, 1903. Over $58,000 in rent and taxes under , the lease upon which the mortgage was given is how in arrears and Unpaid rent and taxes are accumulating at the rate of $21,500 a year. The period of the lease is diminishing with time and the indebtedness secured by the mortgage is increasing rapidly and the security as rapidly decreasing.

Judgment of foreclosure was entered on February 11,1907, and the sale thereunder was advertised for March 21,1907. The alleged claim to a right Of redemption from the summary proceedings of dispossession is the only property to be disposed of under the foreclosure sale herein. Ho deficiency judgment was awarded against the defendant Sire, nor is lie in possession of the premises ordered to be sold.

It was found as a fact upon the trial that Leander S. Sire has ássigned to one Henry B, Sire, not a party to this action, all of his .. interest and claim in the mortgaged, premises and in the enterprise and transaction referred to and set forth-in the answer of said defendant,

While a notice of appeal from the judgment has been served on behalf of the defendant Sire, no notice of any exceptions to the decision was filed within tlíe time prescribed by law on his behalf in the clerk’s office, and no copy thereof was served upon the attorney for the plaintiff' within the time prescribed by law.

■The application for a stay of the sale under the judgment-and for an order fixing the amount of the security to be given thereon was

p. 196

addressed to the sound discretion of the court under the provisions of section 135.1 df the .Code of Civil-Procedure.

Upon the facts appearing upon this record we-.,are of the opinion that the learned Special Term did not exercise a sound discretion in granting the stay and fixing-security thereon, and, so the order was erroneous. The.respondent. has , not established reasonable grounds for the belief that .he has a meritorious appeal. In view of the nature -of the property right Upon which the mortgage was foreclosed,' it is evident that, any delay must be injurious and that this proceeding is purely of a. dilatory character and to subserve other', ends than to permit a review of the-trial and-judgment upon-the merits* In the absence of exceptions the expression óf opinion in ■the moving affidavit of the counsel for the -respondent that “ the learned court was incorrect in its decision and findings of fact and conclusions of law necessary to sustain -the judgment,” without advising the court upon what ground, that opinion is- based, is .entirely, insufficient to satisfy us of the good faith of the appeal.

, Therefore, the order appealed.-from should be reversed and the-stay, vacated, with costs.

Present — Patterson, P. J., Ingraham, McLaughlin, Clarke and Lambert, Jj.

Order reversed and stay vacated, with costs.