Faber v. Hanbury

Judgment affirmed, with costs. The findings that the defendant Hart brought and conducted his foreclosure suit, including the sale thereunder, in good faith and without fraud, are sustained by the proofs. Whatever remedy the plaintiff, as receiver, may have against the other defendants, he has no right or equity to stop and delay Hart’s foreclosure, and the realization of his judgment. The plaintiff’s requests to find were properly refused in this suit, because immaterial as against Hart. To remove any doubt as to the effect of the decree below, the findings contained in the decision should be modified to limit their application. Accordingly, finding No. 9 is amended by' adding, at the end thereof, “so far as any acts or conduct of the defendant Hart are. concerned at said sale.” Finding No. 20 is' chánged so as to read: “This action, brought by plaintiff, is without foundation, as against the defendant Hart.” The complaint was rightly dismissed, on the merits as to Hart, and not upon the merits as to the other defendants. No issues were evaded, nor was any relevant investigation of facts omitted, by the learned trial justice. The expression in the brief for appellant that these had been “shirked” was improper and unwarranted. See, also, 159 App. Div. 59 , 144 N. Y. Supp. 381 .