Schultz v. Mead — 29 N.Y. St. Rep. 203

Majority

p. 203

Harmon C. Schultz, Resp’t, v. George W. Mead, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

1. Leave to sue—Code Oiv. Pbo., § 1628.

Section 1628, Code Civ. Pro., has reference to the original debt the mortgage was given to secure, and does not require leave to sue on a judgment for deficiency.

2, Fobeclosube—Deficiency judgment—Defense.

It is no defense to an action on a deficiency judgment that the mortgagor made a profit upon his purchase of the mortgaged premises.

Appeal from judgment in favor of. plaintiff after trial by the court without a jury.

p. 204

One Oole foreclosed a mortgage on premises owned by defendant, and purchased on the sale for $3,200, leaving an apparent deficiency of $1,123.21, for which judgment was entered. This judgment was afterwards assigned to plaintiff.

Oole subsequently sold the premises for $5,000.

Defendant claimed that the action on the judgment could not be maintained, because leave to sue had not been obtained pursuant to § 1628 of the Code; and that the mortgagor had been fully paid, he having bought at such a price that he afterwards made enough by its sale to cover the deficiency judgment.

SewaTl Sergeant, for app’lt; James & Thomas M. Troy, for resp’t.

The principle laid down in the case of Mead v. Spink, 15 N. Y. State Rep., 881, is decisive of this case.

This case does not fall within § 1628 of the Code of Civil Procedure, as that section has reference to the original debt the mortgage was given to secure. One purpose of the section is to prevent more than one suit and one bill of costs upon the bond of original indebtedness.

The defendant is concluded by the deficiency, and the plaintiff has the right to sue upon'that judgment

The judgment became a new obligation upon its being docketed, and the fact that plaintiff’s assignor made a profit upon his purchase of the mortgaged premises was entirely immaterial. The dissenting opinion in the case of Mead v. Spink may be what the law ought to be, but it was overruled by this general term, and such decision is conclusive in this contention.

Judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.