Lester v. Mann — 5 N.Y.S. 513

Majority

p. 513

Lester v. Mann et al.

(Supreme Court, General Term, Third Department.

May 27, 1889.)

Headnote

Vacating Judgment.

A motion to set aside a judgment of foreclosure by default, and a sale of the property foreclosed, is properly denied, where defendant makes no affidavit of merits, does not show that he has been injured by the judgment and sale, nor dispute the validity of the conveyance under which the foreclosure and sale were had.

Appeal from special term, Saratoga county.

Henry A. Mann moved to set aside a judgment of foreclosure by default and sale of the mortgaged property, and all other proceedings founded on the judgment which was rendered in the action of Willard Lester against Henry A. Mann and others. The motion was denied, and Mann appeals.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

C. H. Sturges, for appellant. Charles S Lester, for respondent.

If the deed and the declaration created a mortgage, then there would be no doubt that the so-called “foreclosure” was proper. If, on the other hand, these instruments created a trust, then it would not be illegal for the trustee to apply to the court, so that under its sanction the power to sell the land should be exercised. It may not have been necessary to do this, but we see no harm in this course. The plaintiff was thus enabled to establish, in a legal proceeding, the existence and extent of the claims which were to be paid under ttie trust. The appointment of a new trustee by this court was made on notice to Mann, and he has not appealed from the order. It must stand as valid. In the complaint in this action the facts are all fully stated, and the judgment taken is that which is asked for. The defendant Mann makes no affidavit of merits, and shows nothing which indicates that he has been injured by the judgment and sale. He does not show that the debt as found by the referee was too large, nor does he dispute the validity of the deed of conveyance. We see no ground to reverse the order. Order affirmed, with $10 costs and printing disbursements against defendant Mann. All concur.