Filon v. Durkin — 40 N.Y. St. Rep. 666

Majority

p. 666

Michael Filon, Pl’ff, v. John M. Durkin, Resp’t, Impl’d with Melville G. Riker, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 23, 1891.)

Headnote

Appeal—Foeeclosube—Discbetioraby oedeb.

After judgment of foreclosure by default and sale of the premises to one of the defendants, who did not take a deed but paid the amount of the mortgage and took an assignment thereof, the county court on motion of a defendant who was liable for deficiency, if any, opened his default to allow Mm to set up certain equities existing between him and said purchaser. It appeared that the moving defendant had little reason to believe that a judgment for deficiency would be taken, and was told by plaintiff that the bond and mortgage were paid. Held, that the order of the county court was a discretionary one, and was not reviewable in this court.

Appeal by the defendant Riker from an order of the county court of Monroe county, dated February 9, 1891, opening the default of the defendant, John M. Durkin, and permitting him to interpose an answer setting up certain equities existing between him and his co-defendant, the appellant Riker.

J. A. Robson, for app’lt; S. D. Bentley, for resp’t.

The controversy on the motion, and upon this appeal taken from the order entered on the motion, is between certain co-defendants, namely, Durkin and Riker. The notice of motion was served not only upon the appellant but also upon the plaintiff; but the plaintiff makes no appearance upon the motion.

The action was brought to foreclose a purchase money mortgage made by the defendant, Ellis, to the defendant, Durkin, and by the latter assigned to the plaintiff with a guaranty of collection. Mone of the defendants made any defense to the action.

p. 667

On the 16th day of April, 1890, after judgment of foreclosure, and a sale under such judgment had been had, a judgment for deficiency of $373.69 was taken against the defendants, Durkin and Ellis. On the sale, in pursuance of the judgment of foreclosure, the defendant Eiker bid off the premises in his own name. It appears, however, that no deed was given by the referee ; nevertheless the plaintiff received his pay in full from the defendant Eiker, to whom the bond and mortgage in question were assigned by the plaintiff without recourse.

Certain equities, it is claimed by the respondent, existed between the appellant and the respondent Durkin, growing out of sundry real estate transactions between them, the details of which it is not necessary to mention for the purposes of this decision. It is claimed in behalf of Durkin, that as between these defendants it was the duty of the appellant Eiker to pay any judgment of deficiency which was taken in the foreclosure suit. This defendant, however, failed to interpose any answer or take any steps to assert such equitable considerations until after the judgment of foreclosure and sale, and after the assignment of the bond and mortgage had been made by the plaintiff to the appellant. The excuse given for the omission to set up these equities is not of the most substantial and conclusive character, although it is plain to be seen from the whole evidence, and from all the affidavits, that the respondent Durkin had little reason to believe any judgment of deficiency would be taken against him in this action. The appellant had done no act and had made no assertions designed or calculated to induce this non-action on the part of Durkin. A complete excuse, however, of the delay in making this motion is given by the moving party covering a time between the sale and the time that the motion was originally made, and that excuse is that the plaintiff, not the appellant, had told the moving party that the bond and mortgage had been paid. Probably the plaintiff intended to say no more than that he had received the amount thereof, and not that the bond had been satisfied. After ascertaining that the appellant had become possessed of the bond and mortgage and claimed the right to enforce the judgment for deficiency, no loches can be imputed to Durkin.

The decision of the question, we think, rested in the discretion of the county court, and consequently is not reviewable in this court, under § 1342 of the Code of Civil Procedure, within the general principle governing courts at law, that one court will not review the discretionary orders made by another court. Kugelman v. Rhodes, 36 Hun, 269 .

This principle rests not upon any statutory provision, but upon the well-established practice of courts of separate powers and organic differences. Under the Code of Procedure, until the amendment, subdivision 4, § 11 of that Code, made by chap. 741 of the Laws of 1870, the provision touching appeals to the court of appeals from orders made by the supreme court was of the same general character as in § 1342 relating to appeals from the county court to the supreme court; yet, the court of appeals held that discretionary orders made by the supreme court were not re

p. 668

viewable. Lansing v. Russell, 2 N. Y., 563 ; Humphrey v. Chamberlain, 11 id., 274; Bolles v. 42 id., 256.

The amendment of 1870, which is now embodied in the present Code of Civil Procedure, sub. 2 of § 190, permitting appeals from orders affecting a substantial right “ and not resting in discretion,” was doubtless made in pursuance of the previous decisions of the court of appeals. Hence it is that in the case of People ex rel. v. Board Police Commissioners, 82 N. Y, 506 , the court says that the language of the new Code, subdivisions 2 and 3 of § 190, does not differ in meaning from that of the old Code, § 11.

We are of the opinion, therefore, that the application made to the county court was one entirely of favor, and was not based upon any substantial right, and that the order appealed from is not reviewable by this court.

Appeal dismissed, with ten dollars costs and disbursements.

Dwight, P. J., and Lewis, J., concur.