Majority
p. 99(27 Misc. Rep. 30.) SHERWOOD et al. v. ELLENSTEIN et al. (Supreme Court, Special Term, New York County. March, 1899.)
Headnote
Foreclosure—Right of Defendant Lienor to Compel Continuance.A judgment creditor, defendant in foreclosure, whose lien has become barred pending suit, cannot compel plaintiff to continue the prosecution for his benefit.
Suit by Nancy L. Sherwood and another against Abraham Ellen-stein and others. Motion to discontinue the action without costs, and to cancel notice of lis pendens filed therein.
Granted.
Moses J. Sneudaria (Gross & Sneudaria, of counsel), for the motion.
Theodore H. Friend, opposed.
Discontinuance of an action for the foreclosure of a mortgage is resisted by a judgment creditor defendant, whose lien upon the mortgaged premises, which was alive at the commencement of the action, has now ceased because of the lapse of 10 years. Gode Civ. Proc. § 1251; In re Harmon, 79 Hun, 226 , 29 N. Y. Supp. 555 ; Nutt v. Cuming, 155 N. Y. 309 , 49 N. E. 880 . I do not think that a right to resist the discontinuance is thus presented. The •creditor might, perhaps, have had a lien bn the surplus by virtue of his standing at the commencement of the action, but its pendency did not preclude him from enforcing his execution, and his failure
p. 100
to enforce it was at the risk that the action might not be prosecuted. Certainly, he cannot compel the parties to continue the prosecution in order to enable him to discover if "there may be a surplus; and, at most, for the plaintiff’s failure to prosecute, this defendant might finally take a dismissal of the complaint, with costs, i This, however, would not aid his asserted lien, and at the present time it is not apparent that the discretion of the court should be exercised in his favor so far as to give him costs in any amount, for he has not been called upon to do anything. The opposition to the motion is not reasonable, and the application is accordingly granted, with $10 costs.
Cases cited
- Nutt v. Cuming 155 N. Y. 309 p. 99