Lester v. Mann — 24 N.Y. St. Rep. 501

Majority

p. 501

Willard Lester, Trustee, etc., Resp’t, v. Henry A. Mann et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

Foreclosure—Judgment of—When not set aside.

A motion to set aside a judgment of foreclosure by default, and all proceedings founded thereon, is properly denied, where the defendant makes no affidavit of merits, shows nothing which indicates that he has been injured by the judgment and sale, nor disputes the validity of the conveyance under which the foreclosure was had.

Appeal from an order made at special term denying a motion to set aside a judgment of foreclosure entered upon the default of defendant, and all proceedings founded thereon.

C. H. Sturges, for app’lts; G. S. Lester, for resp’t.

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 the 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 ten dollars costs and printing disbursements against defendant, Mann.