United States Trust Co. v. Schliep

Edward W. Sheldon, for plaintiff.

(1) The relief sought for is within the power of the court to grant, and has-been allowed before in similar cases. See Code Civ. Proc. £ 723: “The court may, after judgment in furtherance of justice, and as it deems best, amend’ any process, pleading, or other proceeding.” In case of. Sprague v. Jones, 9 Paige, 395, which was a suit for foreclosure of a mortgage, and in which-the plaintiff’s counsel had omitted to ask for a judgment of deficiency against a defendant who was personally liable, the chancellor said: “An-additional order or decree must be entered, as a consequential direction upon, what is contained in the decree as enrolled, rendering the defendant Graham personally liable for the deficiency.” In Bank v. Morton, 67 N. Y. 199 , where the-judgment had been entered against two defendants only, the court allowed an amendment so that it should be against the third defendant. In Wood v. Martin, 66 Barb. 241 ,—an action to foreclose a mortgage,—the judgment was amended by changing the description after the sale had taken place. In the case of New York Ice Co. v. Northwestern Ins. Co., 21 How. Pr. 296 , on a motion to amend the judgment, Comstock, C. J., said: “It is suggested in the opposing papers that the judgment has become perfect and final before the motion was made. I do not see the force of this suggestion. The judgment was perfect as soon as pronounced and entered. It would become-final when the time for appealing should expire. I think the power of the court to modify or amend the judgment cannot be questioned.”z

Charles Coleman Miller, for defendants.

(1) By entering judgment without obtaining decree of deficiency against defendant, plaintiff discharged defendant from personal liability. See the case-of Insurance Co. v. Hoyt, 15 Wkly. Dig. 489 . This was an appeal by the defendant, Hoyt, from a judgment of foreclosure and sale. The trial court had found that plaintiff was entitled to a personal judgment against Hoyt for any deficiency, but the judgment was entered without relief, as against Hoyt, for the deficiency. In rendering the opinion at general term, Cullen, J., held “that, by entering judgment without making Hoyt liable for the deficiency, the plaintiff discharged Hoyt from such liability.”

(3) Courts can allow amendments only “in furtherance of justice.” Code Civ. Proc. § 723. To grant an application of this kind would be unjust and inequitable. The defendant’s position is changed, to his prejudice, by reason of plaintiff’s error; and an amendment should not be allowed, to the injury of the defendant. A defendant has a right to rely on the judgment "of foreclosure and sale as finally determining the issues and liabilities and rights of parties. If such judgment fails to provide for the payment by a defendant of a deficiency, he has no further concern in the matter, and is-not interested in having the property sold to the best advantage, or in buying it in himself to save a deficiency judgment. It would therefore be inequitable to make a defendant liable for a deficiency, when, were it not for the mistake of the plaintiff, defendant might be able to, and in most cases would, prevent any deficiency. It is no answer to this to say that defendant was liable under the mortgage, and did not deny it by answer, but committed' default in pleading. True, up to the entry of judgment, he could not complain of or deny his liability; but when plaintiff has practically discharged defendant, by .failing to enter a decree of deficiency against him, such defendant (especially one who has transferred the property to another, who assumed the mortgage, as in this case) might well rely on plaintiff’s decree (prepared and entered by his own counsel), and assume that the plaintiff intended to buy in the property, or see that it was properly bought in, and looked only to the property, or to defendant’s grantee, for the amount of his claim. '