Warner v. Lessler — 33 N.Y. 296

Majority

p. 296

James D. Warner, Treasurer of Erie County, Respondent, v. Joseph Lessler et al., Appellant.

Headnote

Action to foreclose a mortgage executed by defendants to Christian Mentz, Jr., as treasurer of Erie county, to secure the payment of a certain bond conditioned to pay a sum therein named to the obligee or to his successors in office, in trust for certain infants therein named. The complaint contained the necessary averments, showing the plaintiff entitled to maintain the action for forclosure. The answer contained a general denial of the facts set out in the complaint. The issue was referred to a referee who reported that the allegations and facts stated in the complaint were true, except as to the amount claimed to be due, or to become due. The proper reference was again made to ascertain the amount due; and on the coming in, filing and confirmation of the .last report, a decree of forclosure was entered, and sale ordered. On appeal therefrom to the General Term, the same was affirmed, and an appeal was taken by the defendants to this court. The appellant submitted no points.

Held, that, as the appellant had pointed out no error in the proceedings of the court below, and the only defense set up in the answer was a general denial of the allegations in the complaint, which the referee ha,d found for the plaintiff; and as there appeared to be no error in the proceedings below, this was a proper case for imposing a penalty upon the appellant.

The judgment of the General Term was affirmed with ten per cent penalty.