Majority
p. 320Mary P. Taggart, Resp’t, v. Mary C. Rogers et al., App’lts. (Supreme Court, General Term, Second Department, Filed December 10, 1888.)
Headnote
Appeal—Omission ekom degree—When beabgtoment will be gkranted.Where on affirming a judgment in favor of plaintiff’s right to redeem from a mortgage foreclosure and ordering an accounting, there was no provision made for allowance to defendant for repairs and improvements ■and for interest paid on a prior mortgage, the omission being overlooked, ■a reargument will be granted.
Appeal from an interlocutory judgment allowing plaintiff, in virtue of an inchoate right of dower not cut off by a .foreclosure, to redeem from a mortgage foreclosure.
Motion by Mary C. Rogers, one of the defendants in Taggart v. Wade et al. (17 N. Y. State Rep., 646), for a re--argument.
Martin & Smith (M. W. Devine, of counsel), for motion; Franklin & Clifford (H. H. Bartell, of counsel), for resp’t.
Assuming that the principle upon which the affirmance of the plaintiff’s cause of action depends is right, the interlocutory decree appealed from should contain provisions for the allowance to the defendant upon the Recounting for repairs and improvements, and for interest paid on a prior mortgage on the property.
The omission of the provision in the decree was overlooked. A general accounting was provided for, but was restricted so as to exclude these items of expenditure, if there be such.
The motion for a reargument should, therefore, be granted, with costs.
Pratt, J., concurs.