37 A.D.2d 713 | N.Y. App. Div. | 1971
In an action to foreclose a mortgage on real property, defendants Tirino appeal from an order of the Supreme Court, Nassau County, dated January 8, 1971, which, after a hearing, denied their motion to vacate a default judgment of foreclosure. Order affirmed, without costs. Heretofore, upon an appeal from a prior order denying appellant’s said motion to vacate the judgment, this court reversed said prior order and remanded the motion to the Special Term for the above-mentioned hearing (Brandenberg v. Tirino, 34 A D 2d 658). The record before us upon that appeal showed that a money judgment by confession had been entered against appellant-mortgagor August Tirino and in favor of respondent’s decedent in the amount of $11,000, plus interest, costs and disbursements, before commencement of this action. That record also showed that a collateral bond executed with the note and mortgage by appellants listed moneys advanced to August Tirino, including an undated advance of $11,000. The instruments themselves were not made a part of the printed record. Appellants contended that the $11,000 set forth in the bond was the same $11,000 which was the subject of the confession of judgment and that, without the return of execution unsatisfied in whole or in part upon the judgment by confession, this subsequent action to foreclose the mortgage was barred pursuant to subdivision 1 of section 1301 of the Real Property Actions and Proceedings Law, which provides: “ Where final judgment for the plaintiff has been rendered in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property of the defendant has been issued ® * * and has been returned wholly or partially unsatisfied.” Appellants contended that the court had no jurisdiction to enter a foreclosure judgment against them and sought to vacate the judgment pursuant to CPLR 5015 (subd. [a], par. 4). Respondents, in affidavits, denied that the $11,000 judgment by confession corresponded to that identical sum listed in the collateral bond. The above-mentioned remand to the Special Term was for a hearing to determine this issue