Hyperlawhypertext legal databasebeta Poughkeepsie Savings Bank v. Herron 256 N.Y. 339

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Poughkeepsie Savings Bank v. Herron

256 N.Y. 339 Court N.Y. Decision date 1931-05-12 English

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p. 339
The Poughkeepsie Savings Bank, Appellant, v. Frances Herron et al., Defendants, and Wener Holding Co., Inc., Respondent. The Poughkeepsie Savings Bank, Appellant, v. George Cohen et al., Defendants, and Wener Holding Co., Inc., Respondent.
(Argued March 31, 1931;
decided May 12, 1931.)
p. 340
Joseph A. McCabe and Earl Hawley for appellant.
The additional allowances of five per cent are proper, even though the cases were not difficult and extraordinary, since the actions were to foreclose real estate mortgages in which a defense had been interposed. (Civ. Prac. Act, § 1513, subd. 2; Dicianni v. Wrong, 224 App. Div. 621 ; Badger v. Johnston, 106 App. Div. 237 .)
Abraham A. Silberberg for respondent.
The additional allowances to the plaintiff in these actions to foreclose mortgages are illegal and unwarranted because the actions are neither difficult nor extraordinary. (Waterbury v. Tucker & Carter Cordage Co., 152 N. Y. 610 ; Long Island L. & T. Co. v. Long Island City & N. R. R. Co., 85 App. Div. 36 ; 178 N. Y. 588 ; Swan v. Stiles, 94 App. Div. 117 ; Riesgo v. Glengariffe Realty Co., 114 App. Div. 172 ; Campbell v. Emslie, 188 N. Y. 509 ; Troughton v. Digmore, Holding Co., 105 Misc. Rep. 638 ; Realty Associates v. Packard Motor Car Co., 119 Misc. Rep. 292 ; Nassau Nat. Bank v. Paul, 223 App. Div. 733 ; 248 N. Y. 650 ; Kaplan v. Koenig, 225 App. Div. 675 ; Dicianni v. Wrong, 224 App. Div. 621 .)

In two actions by plaintiff to foreclose mortgages, defendant Wener Holding Co., Inc., interposed defenses but defaulted on the trial. After judgments, including awards of additional allowance for $961.75 in one action and $2,000 in the other, had been entered in favor of plaintiff, defendant moved at Special Term to vacate and set aside the judgments in so far as they award additional allowances. The motions were denied but the orders denying them were reversed on the law.

p. 341
The Special Term was empowered in its discretion, pursuant to section 1513, subdivision 2, Civil Practice Act, to award additional allowances in these sums. An action to foreclose a mortgage is one specified in this section, defenses were interposed and the sums awarded do not exceed five per centum of the value of the subject-matter involved. When a defense has been interposed in this kind of action, subdivision 2 does not require that the case be difficult and extraordinary. It is only in cases where no defense has been interposed that the provisions of subdivision 1 are applicable. No error of law, therefore, was committed at Special Term.

The orders of the Appellate Division should be reversed and those of the Special Term affirmed, with costs in this court and in the Appellate Division.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.

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