Leake v. Bundy

Headnote

Action of foreclosure — death of mortgagor after a sale under a judgment and the filing of a report of a referee showing the plaintiff to be entitled to a judgment for a deficiency — no substitution cam, be directed, nor can a judgment be entered in the name of the original parties.

Appeal from an order of the Monroe Special Term denying plaintiff’s motion to substitute the administrator of the deceased defendant, as defendant, and to confirm a referee’s report of sale in foreclosure, and for judgment for a deficiency, or for such confirmation and judgment, in the name of the original parties, without substitution.

The mortgage was for $2,000 of the purchase-money of premises sold by the plaintiff to the defendant for $2,500, of which $500 was paid down. The action was for the first installment of $200 due on the mortgage. Judgment of foreclosure and sale was entered July 17, 1867; it directed that the referee, to make the sale, should report the deficiency, that the defendant should pay the same to the plaintiff and that the purchaser should be let into possession on production of the referee’s deed. The sale was made August 10,1867; the plaintiff became the purchaser for $300, leaving a deficiency of more than $2,000. The report of the sale was made August 13, 1867, and was filed October 25,1867. The plaintiff took possession of the premises, and in J une following sold them for $2,250 in cash. The plain tiff’s attorney, the defendant’s attorney and the defendant herself, all died before this action was made, or any other proceeding was had after the filing of the referee’s report of sale, more than twenty years before.

The court at General Term said: “ There can be no substitution for the deceased defendant in this action, because the action was at an end before her decease. It had been prosecuted to final judgment. The judgment in this case was final and not interlocutory merely. It left nothing farther to be adjudicated by the court. (Morris v. Morange, 38 N. Y., 172 .) The case is not within section 757 of the Code of Oivil Procedure, providing for the continuance of actions, even as amended in 1879; because the cause of action does not sur

vive or continue. The cause of action was merged and lost in the final judgment. No proceeding can be taken in the action without substitution. The cases is not within the provisions of section 763 of the Code providing for the entry of final judgment in the name of the original parties, after the death of either party, where an interlocutory judgment, etc., had been previously entered, because, as we have seen the judgment already entered was the final and not an interlocutory judgment. There was very much in the facts of this case to lead the court in its discretion to deny this motion, so far as the court had a discretion in the premises; but upon strict legal grounds the motion was properly denied.”

The order must be affirmed, with costs.