Hawley v. Whalen — 19 N.Y.S. 521

Majority

p. 521

Hawley v. Whalen et al.

(Supreme Court, General Term, Fifth Department.

June, 1892.)

Headnote

i. County Courts—Jurisdictional Amount—Foreclosure of Mortgages.

Const, art. 6, § 15, provides “that the county courts shall have the power and jurisdiction they now possess until altered by the legislature. They shall also have original jurisdiction in all cases where the defendant resides in the county, and in which the damages claimed shall not exceed $1,000. * * * They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature. ” Held, that the limitation of $1,000 relates solely to the class of common-law actions for the recovery of money only, and does not affect the juris-, diction of the county court in actions to foreclose mortgages.

3 Same—Deficiency Judgment.

Code Civil Proc. § 340, subd. 1, gives county courts jurisdiction of actions to foreclose mortgages but imposes no limitation of value or amount. Section 348 provides that where it has jurisdiction of an action “it possesses the same jurisdiction, power, and authority * * * therein which the supreme court possesses in like case. ” Held, that the county court has power to render deficiency judgment in a foreclosure action, irrespective of the amount.

A Execution—Deficiency Judgment. ;

Where a judgment of foreclosure directs the payment of any deficiency that may remain after sale, and the referee’s report shows that there is such deficiency, and, the amount of it, plaintiff may issue execution thereon without further application to the court or notice to defendant.

Appeal from Monroe county court.

Action by Phineas Y. Hawley, executor, etc., against Bridget Whalen and others to foreclose a mortgage. From an order of the county court entering judgment against defendants for a deficiency therein defendants appeal.

Affirmed.

Argued before Dwight, P. J., and Macohber and Lewis, JJ.

D. C. Feely, for appellants. G. E. Warner, for respondent.

The case of Moore v. Shaw, 15 Hun, 428 , (appeal dismissed 77 N. Y. 512 ,) the authority of which seems to be unquestioned, is apparently an answer to most of the allegations of irregularity contained in the defendant’s notice of motion. Under the doctrine of that case, the final judgment of foreclosure and sale having adjudged that the defendant, Bridget Whalen, pay any deficiency which might arise on the sale, and it appearing by the referee’s report of sale that a deficiency had arisen, and the amount of it, the plaintiff was entitled to issue execution for such deficiency against the defendant named without any further application to the court or notice to the defendant. The fact, however, that judgment for the deficiency was entered and docketed, can be no objection to the plaintiff’s proceedings. It was in-accordance with the usual and approved practice, and was no doubt necessary to effect a lien upon real estate of the defendant. The omission to serve a

p. 522

copy or give notice of the filing of the.report of sale was not specified among the irregularities complained of in the defendant’s notice of motion. The statute of limitations affords no grounds of relief to the defendant. That statute has no application to proceedings in an action which has been once duly commenced. The objection that the amount of the deficiency for which judgment was entered exceeds the jurisdiction of the county court is based upon the provision contained in section 15 of article 6 of the constitution of this state, which reads as follows: “The county courts shall have the power and jurisdiction they now possess until altered by the legislature. They shall also have original jurisdiction in all cases where the defendant resides in the county, and in which the damages claimed shall not exceed $1,000. * * * They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.” Here it is apparent, from the language employed, that the limitation to $1,000 relates solely to the class of common-law actions, whether on contract or sounding in tort, for the recovery of money only, and that, subject to that limitation, the legislature may confer upon the county courts jurisdiction in any and every class of actions without regard to the extent or value of the property or rights to be affected thereby. Buckhout v. Rall, 28 Hun, 484 . The legislature has, accordingly, conferred upon those courts jurisdiction of the action to foreclose a mortgage without limitation in respect to the value of the property mortgaged, or the amount of the obligation to be enforced. Code Civil Proc. § 340, subd. 1. And it has, moreover, provided that “ where the county court has jurisdiction of an action * * * it possesses the same jurisdiction,power, and authority in and over the same, and in the course of the proceedings therein, which the supreme court possesses in a like case; and it may render any judgment or grant either party any relief which the supreme court might render or grant in a like case.” Id. § 348. Under this provision of the statute there can be rto question of the authority of the county court to render a judgment for any deficiency which may arise in any action of foreclosure of which it has obtained jurisdiction. The judgment for a deficiency is necessarily an incident to the action of foreclosure, because the very existence of the deficiency, and the amount of it, is dependent upon the proceedings in the action. The judgmentin this case seems not to be obnoxious to any well-founded objection to the jurisdiction of the court or the practice in the action. The order appealed from should be affirmed.

Order of county court of Monroe county affirmed, with costs. All concur.

Cases cited

Moore v. Shaw 77 N. Y. 512 N.Y. 1879-06-10 p. 521