Jacobie v. Mickle — 24 N.Y.S. 87

Majority

p. 87

(70 Hun, 599;

mem. report without opinion.)

JACOBIE v. MICKLE et al.

(Supreme Court, General Term, Third Department.

July 8, 1893.)

Headnote

Res Judicata—Foreclosure oe Second Mortgage.

Where the holder of a first mortgage is made party to an action by a second mortgagee to foreclose bis mortgage, and neither answers nor demurs, and a decree is entered for the sale of the property and for payment of the second mortgage, he is bound thereby.

Action by Clara M. Jacobie against Henry Mickle, Samuel T. Guilford, and others to foreclose a mortgage. Complaint dismissed. Plaintiff appeals.

Affirmed.

The defendant Samuel T. Guilford was the only defendant who answered. By the supplemental answer of Guilford the defense is interposed that the defendant Guilford had, before the commencement of this action, commenced an actibn for the foreclosure of a second mortgage upon the premises described in the complaint, making as one of the defendants therein the plaintiff, Clara M. Jacobie, the holder of the prior mortgage, and alleging that it was past due, and asking that .the amount of the plaintiff’s bond and mortgage be ascertained, and paid out of the proceeds-of the sale, and also alleging that said prior action had been prosecuted to judgment, and that the final judgment of foreclosure and sale had been rendered therein, providing for the payment of the plaintiff’s bond and mortgage.

p. 88

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

King & Ashley, (H. Prior King, of counsel,) for appellant.

J. H. Bain, for respondents.

We think the court below reached a correct conclusion. In the foreclosure action brought by Samuel T. Guilford against the plaintiff and others on the second bond and mortgage, plaintiff was made a party defendant, and did not answer or demur; and judgment in the action was regularly and properly entered for the sale of the mortgaged premises, and for the payment of plaintiff’s bond and mortgage out of the first proceeds. We think, under the circumstances, plaintiff, being a party to that action, and not having answered or demurred, is bound by the judgment. See Guilford v. Jacobie, (Sup.) 23 N. Y. Supp. 462 . It would seem almost absurd to allow the plaintiff to obtain another judgment for the sale of the mortgaged premises. It is suggested that the Guilford judgment has been reversed. But we are compelled to decide the question submitted to us on this appeal on the facts appearing in the printed case. The fact of the reversal of said judgment does not appear in the case, and did not appear ,on the trial in the court below. The proper remedy for the plaintiff, under the circumstances, is probably by motion in the court below. Parkhurst v. Berdell, 110 N. Y. 392 , 18 N. E. Rep. 123 .

The judgment should be affirmed, with costs.