Hawley v. Whalen — 46 N.Y. St. Rep. 512

Majority

p. 512

Phineas Y. Hawley, Ex’r, Resp’t, v. Bridget Whalen, Impl’d, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1892.)

Headnote

1. Foreclosure—Deficiency.

Where the judgment in an action of foreclosure adjudges that a defen

p. 513

dont shall pay any deficiency which may arise on the sale, and it appears by the referee’s report that a deficiency has arisen and the amount thereof, the plaintiff is entitled to issue execution therefor without further application to the court or notice to the defendant, and it is not an objection to his proceeding that he has had judgment for such deficiency entered and. docketed.

&. Same—Statute of limitations.

The statute of limitations has no application to proceedings in an action which has once been duly commenced.

3. Same—Jurisdiction of county court.

The jurisdiction of the county court of actions of foreclosure is unlimited as to the value of the property or the amount of the mortgage, and where it has acquired jurisdiction of the action it may render judgment for any deficiency which may arise therein.

Appeal from an order of the comity court of Monroe county, denying defendant’s motion to vacate a judgment for a deficiency, entered in an action for the foreclosure of a mortgage.

D. C. Feely, for app’lt; G. E. Warner, for resp’t.

The case of Moore v. Shaw, 15 Hun, 428 , appeal dismissed, 77 N. Y., 512 , the authority of which seems to be unquestioned, is apparently an answer to most of the allegations of irregularity contained in the defendant’s notice of motion.

Under the doctrine of that case the final judgment of foreclosure and sale having adjudged that the defendant, Bridget Whalen, pay any deficiency which might arise on the sale, and it appearing by the referee's report of sale that a deficiency had arisen, and the amount of it, the plaintiff was entitled to issue execution for such deficiency, against the defendant named, without any further application to the court or notice to the defendant. The fact, however, that judgment for the deficiency was entered and docketed can be no objection to the plaintiff’s.proceedings; it was in accordance with the usual and approved practice, and was no doubt necessary to effect a lien upon real estate of the defendant.

The omission to serve a copy or give notice of the filing of the report of sale was not specified among the irregularities complained of in the defendant’s notice of motion.

The statute of limitations affords no ground of relief to the defendant; that statute has no application to proceedings in an action which has been once duly commenced.

The objection that the amount of the deficiency for which judgment was entered exceeds the jurisdiction of the county court, is based upon the provision contained in §15 of article 6 of the ■constitution of this state, which reads as follows:

“ The county courts shall have the powers and jurisdiction they now possess until altered by the legislature. They shall also have original jurisdiction in all cases where the defendant resides in the county and in which the damages claimed shall not exceed .$1,000. * * * They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.”

Here it is apparent from the language employed that the limitation to $1,000 relates solely to the class of common law actions,

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whether on contract or sounding in tort, for the recovery of money only; and that, subject to that limitation, the legislature may confer upon the county courts jurisdiction in any and every class of actions without regard to the extent or value of the property or rights to be affected thereby. Buckhout v. Rall, 28 Hun, 484 . The legislature has accordingly conferred upon those courts jurisdiction of the action to foreclose a mortgage without limitation in respect to the value of the property mortgaged or the amount of the obligation to be enforced, Code Civ. Pro., § 340, subd. 1; and it has, moreover, provided 'that “where a county court has jurisdiction of an action, * * *- it possesses the same jurisdiction, power and authority in and over the same, and in the course of the proceedings therein, which the supreme court possesses in a like case; and it may render any judgment or grant either party any relief which the supreme court might render or grant in a like case.” Id., § 348. Under this provision of the statute there can be no question, of the authority of the county court to render a judgment for any deficiency which may arise in any action of foreclosure of which it has obtained jurisdiction. The judgment for a deficiency is necessarily an incident to the action of foreclosure, because the very existence of the deficiency and the amount of it is dependent upon the proceedings in the action!

The judgment in this case seems not to be obnoxious tg any well founded objection to the jurisdiction of the court or the practice in the action. The order appealed from should be affirmed.

Order of c.ounty court of Monroe county affirmed, with costs.

Macomber and Lewis, JJ., concur.