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Union Trust Co. v. Olmstead

2 N.Y. St. Rep. 506 Court N.Y. Decision date 1886-06-15 English

Delivered by Danforth, J.

Contents

Majority

p. 506
The Union Trust Co. of New York, Resp’t, v. William H. Olmstead, impleaded, etc., App’lt.
(Court of Appeals,
Filed June 15, 1886.)

Headnote

Mortgage—Foreclosure—Part of the property in another state— Supreme court, jurisdiction op.
Where the supreme court had jurisdiction over the cause of action, and the parties in a proceeding to foreclose a mortgage, its decree is valid, although part of the premises covered by it are in another state; as, although its writ may not be operative there, it might have required the mortgagor to execute a conveyance to the purchaser, and what it might have ordered in the first instance it could still require by amendment.
Appeal from an order of general term, fifth department, reversing that portion of the order of Monroe special term, which denied a motion of plaintiff and the petitioner at a,
p. 507
foreclosure sale to amend the judgment, and amending the judgment nunc pro tune.
McNaughton & Olmstead, for appellant; Miller, Peckham & Dixon, for respondent.

The plaintiff sought by foreclosure and sale to enforce a mortgage executed by the defendant corporation. The supreme court had jurisdiction over the cause of action and the parties; and its decree is valid, although part of the premises covered by it are in another state. Its writ may not be operative there, nor its judgment capable of execution as against that portion of the property; and for that reason the court might have required the mortgagor to execute a conveyance to the purchaser, in order that the whole .security offered by the mortgage should, so far as possible, be made effective. Muller v. Dows, 94 U. S., 450 .

This was not done, but the power of the court was not exhausted, and what it might have ordered in the first instance, it could still require by amendment. The order appealed from goes no further than to carry out the intention of the parties to the mortgage, as ascertained by the decree; it relates to a matter within the jurisdiction of the court, and its exercise is not the subject of review.

The appeal should, therefore, be dismissed.

All concur, except Miller, J., absent.