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Stevens v. Breen

283 N.Y. 196 Court N.Y. Decision date 1940-05-28 English

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p. 196
Mabel F. Stevens, Appellant, v. Peter J. Breen et al., Defendants, and Freeport Point Shipyard, Inc., Respondent.
Argued April 23, 1940;
decided May 28, 1940.
p. 198
Edward J. Crowe and Harold V. Seiferd for appellant.
The enforcement of plaintiff’s mortgage by foreclosure is a matter of absolute legal and constitutional right, which cannot be denied or impaired simply on the ground that the “ result ” is “ harsh and unjust.” (Monroe County Sav. Bank v. Baker, 147 Misc. Rep. 522 ; Brooklyn Free Kindergarten Society v. Elbran Realty Corp., 255 App. Div. 852 ; Graf v. Hope Building Corp., 254 N. Y. 1 ; Ferlazzo v. Riley, 278 N. Y. 290 ; Hoard v. Luther, 251 App. Div. 692 ; Lomar Holding Corp. v. Cripple Bush Realty Corp., 265 N. Y. 463 ; Emigrant Industrial Sav. Bank v. Van
p. 199
Bokkelen, 269 N. Y. 110 ; Strochak v. Glass Paper Making Supplies Co., 239 App. Div. 312 ; Guaranteed Title & Mortgage Co. v. Scheffres, 275 N. Y. 30 ; Matter of City of New York [Elm St.], 239 N. Y. 220 .) There was no hardship in the result. Defendant’s position is solely the result of his own negligent conduct, to which the plaintiff in no way contributed. (M. R. M. Realty Co. v. Title Guarantee & Trust Co., 270 N. Y. 126 .)
John S. Russell and Richard P. Charles for respondent.
No right of plaintiff has been denied or impaired. (Matter of the City of Buffalo, 78 N. Y. 362 ; McCall v. McCall, 54 N. Y. 541 ; Ladd v. Stevenson, 112 N. Y. 325 ; Hatch v. Central Nat. Bank, 78 N. Y. 487 ; Barrett v. Third Ave. Ry. Co., 45 N. Y. 628 .)

While the order of the Appellate Division, reversing the judgment and granting a new trial, was on the law and the facts, it is clear from the court’s opinion that it was made in the exercise of its discretion “ in the interest of justice.” In view of the fact that certain defenses were not raised, in the first trial, which defenses, within reasonable expectation might cause the trial court to arrive at a different result, there has been no arbitrary abuse of discretion by the Appellate Division. Under these circumstances, the reversal and the granting of a new trial by the Appellate Division presents no question for review in this court.

The order should be affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts.

Lehman, Ch. J., Loughran, Finch, Bjppey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.

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