Bowman v. Marshall

9 Paige Ch. 78 | New York Court of Chancery | 1841

The Chancellor.

There is a technical defect in the signing of this demurrer ; and as the object of the defendants was evidently to delay the decree of foreclosure, the demurrer would have been set aside, on this ground, if the application had been made the first opportunity after the demurrer was served on the complainant’s solicitor; although he was not misled thereby. But the court will not listen to a mere technical objection of this kind unless it is made without delay. The only question for consideration, therefore, is whether it is proper to hear this application, to overrule the demurrer as frivolous, upon a special motion day ; or whether the complainant shall be subjected to the delay of setting it down at the term as a calendar cause.

As a general rule, the court will not decide upon the merits of a plea, or demurrer, upon a special motion to overrule the same as frivolous. For in ordinary cases it cannot be necessary for the court to interfere before the cause is reached in its regular order upon the calendar. For that class of causes is always reached at an early day in the term; and if the plea or demurrer is then found to be frivolous, the bill may be taken as confessed, and the proper decree immediately entered, unless it be a case in which an answer is necessary. The spirit of the act of May, 1840, relative to the foreclosure of mortgages in this court, however, requires that a frivolous plea or demurrer to a bill of foreclosure should be made an exception to this general rule. And in all such cases, where a defence of that kind is interposed, which is clearly frivolous and intended for delay merely, the complainant will be permitted to make an application, upon any special motion day, before the cause could have been reached and disposed of in its regular order on the calendar, for an order to overrule the plea or demurrer as frivolous, and for a final decree upon the bill taken as confessed.

The demurrer in this case must be overruled accordingly, and the bill must be taken as confessed for want of an answer ; and the usual decree for the sale of the premises must be entered.

As the amount due is stated in the bill, the interest may be computed up to this time and inserted in the decree, without the unnecessary expense of a reference to a mas-ten The decree will reserve the right to the complainant to apply for the payment of his judgment out of the surplus monies which may be produced by the sale; subject to the rights of incumbrancers who have liens upon the premises, subsequent to the mortgage and prior to the judgment of the complainant which is set out in the amended bill.