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Taylor v. Derrick

19 N.Y.S. 785 Court N.Y. Gen. Term Decision date 1892-07-02 English

Delivered by Putnam, J.

Contents

Majority

p. 785
Taylor v. Derrick et al.
(Supreme Court, General Term, Third Department.
July 2, 1892.)

Headnote

Foreclosure op Mortgages—Confirmation op Sale—Objection Waived.
No motion ever having been made by defendant to set aside a final judgment directing foreclosure of a mortgage and judgment for deficiency, if any, against him, he could not object on appeal that no order confirming a report of sale nor any further judgment in the cause was ever entered.
Appeal from special term, Rensselaer county.
Action by Morgan L. Taylor against Lewis W. Derrick and others. From a judgment for plaintiff, defendants appeal.
Affirmed.
Argued before Mayham, P. J., and Putnam and Herrick, JJ.
jET. £>. Bailey, for appellants. Calvin S. McChesney, for respondent.

I think the order of Judge Fursman should be affirmed, and that the case is one where an opinion is unnecessary. The final judgment in the case was entered in 1882, directing foreclosure, and sale and judgment for deficiency against appellants. No motion is made to set aside or modify that judgment. Such being the case, it was not necessary, in 1891, to enter any further or other judgment, nor, as against the defendants, an order confirming the report. If there is any irregularity in the proceedings of the plaintiff, it seems to be a harmless one, and hence, under section 721 of the Civil Code, should be disregarded. See Moore v. Shaw, 15 Hun, 428 ; Morris v. Morange, 38 N. Y. 172 . All concur

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