Werner v. Tuch — 119 N.Y. 632

Majority

p. 632

Charles Werner et al., Appellants, v. Minna G. Tuch et al., Respondents.

Headnote

On an appeal in an action for the foreclosure of a mortgage, an undertaking against waste and for the value of the use and occupation of the mortgaged premises operates as a stay of proceedings, without a covenant to pay a deficiency, and it is optional with the appellant which form of undertaking he will give. (Code Civ. Pro. § 1331.)

(Submitted January 27, 1890;

decided January 31, 1890.)

p. 633

Appeal from order of the General Term of the Supreme Court in the fourth judicial department, made September 10, 1889, which affirmed an order of the Special Term staying proceedings in the above entitled action.

The following is the mem. of opinion:

“The construction of section 1331 of the Code of Civil Procedure adopted in Grow v. Gcmiock ( 29 Hun, 598 ), which, on an appeal in foreclosure cases, holds that an undertaking against waste and for the value of use and occupation operates as a stay of proceedings without a covenant to pay a deficiency, and that the appellant may choose to give either form of the undertaking with equal effect, is approved for the reasons there given.

“ The order should, therefore, be affirmed, with costs.”

Simpson & Werner for appellants.

Reynolds, Stanchfield & Collin for respondents.

opinion for affirmance.

All concur.

Order affirmed.