Taylor v. Derrick

Headnote

Foreclosure—Deficiency.

Where the final judgment in foreclosure directs the payment by a de-

fendant of any deficiency found to be due on the sale, it is not necessary to enter any further or other judgment, nor as against such defendant an order confirming the report of sale, and the entry thereof, if an irregularity, is a harmless one.

Appeal from order denying motion to set aside order confirming referee'.s report of sale, and judgment for deficiency entered thereon.

On or about the 14th day of September, 1882, a judgment of foreclosure and sale in the above entitled action was entered in the office of the clerk of the county of Rensselaer. Said judgment directed that the premises described in the complaint be sold by Yolkert J. Oothout, Esq., referee; that said referee make a report of such sale; that said referee should in such report specify the amount of deficiency, if any, and that the defendants, Lewis W. Derrick and Adam Derrick, pay the same to the plaintiff. Such sale was had, and the referee paid to George Day, Esq., who had been attorney for the plaintiff, the costs of the suit, and he signed a receipt therefor, and the balance of proceeds of sale, after payment of all costs, were paid to the plaintiff in person, who signed a receipt therefor. The referee made a report of such sale, naming therein a deficiency of $860.18, for which the defendants, Lewis W. Derrick and Adam Derrick, were liable, attached thereto the proofs of publication and posting of notices and vouchers, and gave the same to said George Day, Esq. Said report of sale was made at the time it bears date, November 9, 1882.

On October 27, 1891, an order of this court was made at special term confirming such report of sale, and on the 9th day of November, 1891, the county clerk of Rensselaer county entered a judgment against Lewis W. Derrick and Adam Derrick for the sum of $1,324.50, being the amount of deficiency reported, with interest to date. On this same day a judgment for $860.18 deficiency was docketed against Lewis W. Derrick and Adam Derrick.

A motion was made by Lewis W. Derrick to have the said referee’s report of sale vacated; to have the judgment for $1,324.50 entered November 9, 1891, set aside, and to have the docket of a judgment for $860.18 cancelled.

This motion was argued at a special term held at the city of Troy, by Mr. Justice Eursman, on the 4th day of January, 1892, and an order was made and entered denying said motion, with ten dollars costs. From that order the said Lewis W. Derrick takes this appeal.