Hyperlawhypertext legal database Harrison v. Union Trust Co. 87 N.Y. Sup. Ct. 463

← Cases

Harrison v. Union Trust Co.

87 N.Y. Sup. Ct. 463 Court N.Y. Gen. Term English

Judges Present — Mayham, P. J., Putnam and Herrick, JJ.

Contents

Majority

p. 463
Ida S. Harrison, Respondent, v. The Union Trust Company of New York, Appellant, Impleaded with Others.

Headnote

Mortgage foreclosure, when pending — amendment of the judgment therein — it cannot be attacked collaterally — bonds secured by a trust mortgage — action to compel the conveyance by the trustee of the mortgaged premises — •parties thereto.
In an action brought for the foreclosure of a mortgage, until the sale of the mortgaged property is consummated, and the order confirming the sale is entered, the action is pending before the court, and an}*- order made by the court for the amendment of the judgment therein, although erroneous and improperly granted, cannot, in another action in which the parties to the foreclosure action are parties, be treated as void, provided the court had jurisdiction of the parties, and the subject-matter embraced in tlie foreclosure action.
The remedy is by motion to vacate such order, and a party who has acquiesced in the judgment, as amended, cannot question it in another action.
The holders of bonds secured by a mortgage upon real estate are persons interested in having the sale of the mortgaged property consummated, and they are sufficiently interested to maintain an action to compel an accounting by the trustee named in such bonds and mortgage, and to obtain a judgment that such trustee shall execute and deliver a conveyance of the mortgaged property to a purchaser thereof, as directed by the judgment in an action brought for the foreclosure of tlie mortgage; tlie purchaser of the property at the foreclosure sale is a proper but not a necessary party to such action.
Appeal by tbe defendant, Tbe Union Trust Company of New York, from an interlocutory judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Rensselaer on tbe 27th day of March, 1894, upon tbe decision of tbe court rendered after a trial at tbe Albany Special Term overruling tbe demurrer of tbe defendant, The Union Trust Company of New York, to tbe complaint.
This action was brought by one of tbe holders of certain railroad bonds, secured by a mortgage on real estate, in behalf of herself and of tbe other bondholders, to compel an accounting of tbe trust property, and to obtain an adjudication that tbe trustee of such bonds and tbe mortgage which secured ^tbe same, execute and deliver a conveyance as directed by tbe judgment.in an action brought for the foreclosure of such bonds and mortgage.
Wheeler II. PeeMam, for the appellant.
E. W. Paige, for tbe respondent.

The demurrer admits the allegations in the complaint, that in the action brought by Aaron R, Stevens against James C. Hall and others, in which defendant, the Union Trust Company of New York, the mortgagee in the mortgage sought to be foreclosed, was a party defendant, judgment was entered on November 10, 1891, and the order for the amendment thereof on April 5, 1892. That a copy of said judgment and order for the amendment were served on the trust company on May 20, 1892, after the foreclosure sale but before the consummation thereof. That the trust company had refused to obey the direction contained in the amended judgment except upon payment of $5,000.

Until the sale was consummated and the order confirming it entered the “Stevens” action was pending before the court, and we are of the opinion that any order made by such court for an amendment of the judgment, although erroneous and improperly granted, cannot in this action be treated as void. It was an order nlado in an action in which defendant was a party. The court had jurisdiction of the parties and the subject-matter of the action. If the order in question was erroneous the remedy of the trust company was by motion to vacate it. (Stannard v. Hubbell, 123 N. Y. 520 , 526, 527; Audubon v. The Excelsior Ins. Co., 27 id. 221.) Having acquiesced in the judgment, as amended, it is not for the trust company in this action to claim that such amended judgment is void.

We are not prepared to hold that the order in question was. improperly or erroneously granted, if we could properly consider that question in this action. (See The Union Trust Co. of New York v. Wm. H. Olmsted, 102 N. Y. 729 ; Muller v. Dows, 94 U. S. 444 , 449, 450.) But, as above suggested, the order of the Supreme Court in the “ Stevens ” action for the amendment of the judgment should not be reviewed in this action.

Therefore, when this action was commenced, a judgment in an action in the Supreme Court, in which the Union Trust Company of New York was a party for the foreclosure of the mortgage in question, required the trust company to execute a conveyance to the purchaser at the mortgage sale. It has refused to do so. Hence it is plain that the trust has not been fully executed, and also that the

p. 465
declination of the trust company to obey the order of the court to execute a conveyance affords a ground for its removal as trustee; at least a court on trial might deem such refusal of defendant to execute a deed, in connection with other facts stated in the complaint, sufficient to justify such a removal.

We are also of opinion that plaintiff, as owner of the bonds secured by the mortgage sought to be foreclosed in the “ Stevens ” action and entitled to her pro rata part of the proceeds thereof, had a sufficient interest to maintain the action. She is interested in having the-sale consummated. In . fact the holders of bonds secured by the mortgage in question are the only persons interested. The purchaser at the mortgage sale although, perhaps, a proper, was not a necessary party, and as no objection was made in the demurrer to the complaint on the ground of a defect of parties the omission of such purchaser as a party defendant does not prevent the maintenance of the action.

Without considering other questions involved, we think the judgment in the case should be affirmed, with costs. The appellant desiring to submit the question involved to the Court of Appeals the certificate provided for by subdivision 4, section 190 of the Code of Civil Procedure will be granted.

The same disposition should be made of the similar case of Aaron R. Stevens and Andrew A. Douglas v. The Union Trust Company of New York and Others.

Present — Mayham, P. J., Putnam and Herrick, JJ.

Judgment affirmed, with costs.

Cases cited