Veighte v. Slocum — 3 N.Y. St. Rep. 153

Majority

p. 153

William C. Veighte, as Administrator, etc., Resp’t, v. Florence Slocum and others, App’lts.

(Supreme Court, General Term, Second Department,

Filed July 23, 1886.)

Headnote

Practice—Mortgage—Foreclosure—Judgment.

In an order purporting to amend a judgment regularly obtained in an action for foreclosure, “So as to include all lands described in said mortgage, and which were not shown upon the trial to have been released from the lien of said mortgage,” making no mention of the lands sought to be included in this judgment, is whtifcr inoperative, and should be vacated. The judgment determines what wwstproved on the trial, and to render the judgment so indefinite as not to fi^mine the land actually to he sold under it, but to leave that question xd «Indent upon what had occurred on the trial, unknown to purchasers, antr always a matter of dispute, should not be allowed.

Appeal from an order of special term.

Andrew Fallon, for resp’t; Wm. B. Slocom, for appl’ts.

The papers on appeal are so meagre, that it is difficult to learn with any certainty, the exact controversy between the parties. The appeal is from an order of the special term, vacating a previous order. The order vacated does not appear in the papers. As far as can be gathered from the papers, it was an order that purported to amend a judgment regularly obtained in an action for foreclosure “So as to include all lands described in said mortgage, and which were not shown upon the trial to have been released from the hen of said mortgage.” The judgment was never amended, and we imagine, from the appearance in italics in the order appealed from of the words quoted above, that the order vacated, made no mention of the lands sought to be included in the judgment. If this be so, the order vacated was wholly inoperative. The judgment determines what was proved on the trial, and to render the judgment so indefinite as not to determine the land actually to be sold under it, but to leave that question dependent upon what had occurred on the trial, unknown to purchasers, and always a matter of dispute, would be remarkable indeed. Such an order was properly vacated.

Order appealed from should be affirmed with costs.

Barnard, P. J., concurs.