Cole v. Kelly — 8 N.Y.S. 131

p. 131

Cole v. Kelly et al.

(Supreme Court, General Term, Fourth Department.

November, 1889.)

Headnote

1. Judgment—Amendment.

A junior mortgagee was a party to an action of foreclosure, in which the land was sold to K.’s "grantor. Subsequently, plaintiff became the owner of the junior mortgage, and sued to foreclose it, making K. a party. The latter set up the judgment in the prior action in bar, and prevailed in a trial on the merits; whereupon an order dismissing the complaint as to him was entered, with leave to plaintiff to take judgment as to the other defendants who were in default. Judgment of foreclosure was thereupon entered. Held, that it was proper to amend the last-named judgment, on plaintiff’s motion, s.o as to restrict its effect to the defendants other than K., and to declare the results following the decision in K.’s favor.

2. Same—Notice.

K. was not entitled to notice of plaintiff’s application for relief, as against the other defendants, since the decision in his favor, and the dismissal of the" action as to him, protected his title to the land.

Appeal from special term, Oneida county.

On the 6th of May, 1886, the defendant John E. Peterson and his wife executed and delivered to the Oswego Mutual Savings Aid Association a mortgage covering real estate in Oswego city, to secure $1,400; which mortgage was recorded on the same day. On the 19th of May, 1886, Peterson and wife executed a second mortgage, covering the same premises, to secure $355 to Cornelia M. Matteson; which mortgage was recorded May 22,1886. In October, 1886, a default was made in the mortgage given to the association, and the same was foreclosed by action; and in that action Cornelia M. Matteson was a party defendant, and was personally served with a summons and notice of object of action; and the other defendants in this action, except Kelly, were defendants in that action. The usual decree of foreclosure was entered, and the premises sold by the sheriff to the association December 11, 1886; and the association thereafter, by warranty deed, conveyed the premises, on March 4, 1887, to the defendant Edward Kelly, who has ever since been in the possession of the premises. About the 30th of January, 1888, the plaintiff in this action purchased the second mortgage, and commenced this action to foreclose the same, making Kelly a defendant, who appeared in this action, and interposed an answer, setting up his title under the prior foreclosure, and alleging that the prior foreclosure cut off the mortgage held by the plaintiff. None of the other defendants answered. The issues raised by the answer of Kelly were tried at a special term in Oswego county, held on November 27, 1888. The decision upon the merits was in favor of Kelly, and the complaint was ordered dismissed as to Kelly, with costs, but with leave to the plaintiff, if he desired, to enter a judgment against the defendants in default. January 12,1889, the plaintiff’s attorney made an ex parte application to a special term in session in Oswego county, for a judgment of foreclosure, and obtained such a judgment, and thereafter advertised the premises for sale by the sheriff.' The judgment roll filed contained Kelly’s answer, but did not contain the findings made upon the trial of the issue. On the 14th of Janu

p. 132

ary, 1889, Kelly entered a judgment dismissing the plaintiff’s complaint as to him, based upon the findings made at the November special term! February 16, 1889, a motion was noticed to vacate said judgment of January 12th, and to amend the same nunc pro tune, which was granted, and Kelly appeals; and thereupon the order appealed from was allowed.

Argued before Hardin, P. J„ and Martin and Parker, JJ.

Thomas H. King and D. P. Lester, for appellant. W. H. Gardiner, for respondents.

After the decision at the trial term, the title of the defendant Kelly was sustained, and the lien of the plaintiff’s mortgage cut off. Kelly was entitled, upon the findings, to a judgment to that effect, as well as a provision dismissing the plaintiff’s complaint, with costs. The trial was only of the issues raised by his answer. Properly, one judgment should have been entered, allowing the plaintiff such relief as he was, by reason of the default of the other defendants, entitled to, with suitable provisions declaring the result of the trial of the issues raised by the defendant Kelly’s answer. Because the judgment entered upon the default of the other defendants contained too broad provisions, and did not properly declare the results following the decisions made by the trial term, its amendment and correction were allowed. The same result might have been attained by setting aside the judgment directed by Justice Churchill at the Oswego special term, and authorizing the entry of a judgment which should allow the plaintiff all he was entitled to against the defaulting defendants, and coupled with the proper provisions upon the determination of the issues raised by the answer of the defendant Kelly.

We see no force in the suggestion that Kelly, after a decision dismissing the plaintiff’s complaint as to him, was entitled to notice of the plaintiff’s application for relief as against the defaulting defendants. Hammond v. Morgan, 101 N. Y. 179 , 4 N. E. Rep. 328 , is unlike the case before us. That •was an action of replevin, and there was but one defendant; and it was a proper case for notice of motion when an application was to be made for an order affecting the form of a judgment to be rendered against such defendant. Inasmuch as the mortgage held by the plaintiff was owned by Cornelia M. Matteson at the time of the foreclosure of the mortgage under which defendant Kelly acquired title, and she was made a party, and her rights cut off by sale upon the mortgage given prior to her mortgage, the defendant Kelly can hold the premises, notwithstanding the relief given in this action, as against the defaulting defendants other than Kelly. Such is the effect to be given to the first foreclosure, in virtue of section 1632 of the Code of Civil Procedure. The judgment, as amended by the order appealed from, protects the rights of defendant Kelly. The association became a purchaser at the sale had under the prior mortgage; and, as befqre stated, such sale cut off the Matteson mortgage, which was assigned to the plaintiff. If the judgment remains as amended by the order appealed from, it Will not authorize a writ of assistance against Kelly. His rights stand adjudicated and protected. The former judgment of foreclosure, under which his grantor took title, secures to him the right of ownership and of possession to the premises. We think the order should be affirmed.

Order affirmed, with $10 costs and disbursements.

(concurring.) The practice in this case was irregular, and not to be commended. But, inasmuch as the order appealed from amended the judgment and judgment roll so as to fully protect all the rights of the defendant Kelly, it should be affirmed. Hence I concur in the opinion of Brother Hardin.

Parker, J., concurs.

Cases cited

Hammond v. Morgan 101 N. Y. 179 N.Y. 1886-01-19 p. 132