114 N.Y.S. 890 | N.Y. App. Div. | 1909
In her complaint the plaintiff alleges that on the 11th day of January, 1907, she executed and delivered to one Horowitz a bond under her hand and seal, conditioned to pay the s.um of $20,0,00 on the 1st of May, 1907, and as collateral security for the payment of such sum, with interest, at the time stated, she executed and deliy-' ered a mortgage upon the real estate described in the complaint; that the bond and mortgage were subsequently assigned to the defendant in this action, who commenced an action to foreclose the mortgage, which -resulted in a judgment of foreclosure and sale; that prior to the sale she duly tendered to the defendant the amount due upon the- bond, together with all interest, costs and disbursements due theréon;; that he then falsely and fraudulently, and with the iiitent of depriving the plaintiff of her right to redeem the premises from the lien of the mortgage, represented that she should wait until after a sale of -the premises in the foreclosure proceedings at which he Would become the purchaser, take the title, and then would réconvey the property to her upon payment of the amount tendered; that the representations thus made by the defendant — that he would reconvey the property — were false, in that he did not intend at that time to do so, and were made for- the- purpose of inducing the plaintiff to take no further proceedings in the mat
The answer denied the material allegations of the complaint, and as a separate defense set up the foreclosure action; the sale of the .premises thereunder; the purchase of the same by the defendant; confirmation of the referee’s report of sale; alleges that this plaintiff was represented in that action by an attorney who had notice of all the proceedings taken therein; and that the foreclosure action is binding and conclusive upon the plaintiff upon all the facts alleged in the complaint and is a bar to. this action.
After issue had been joined the defendant moved, under section 547 of the Code, of Civil Procedure, for judgment upon the pleadings. The motion was granted and the complaint dismissed, with costs. Judgment was entered to this effect, from which the plaintiff appeals. ■
The section of the Code referred to was added by chapter 166 of the Laws of 1908 and went into effect on the first of September of that year. It provides that if either party is entitled to judgment upon the pleadings the court may, upon motion, at any time after issue joined, give judgment accordingly. The purpose of the sec
Here, the defendant admits' that prior to the sale the plaintiff tendered to him the amount due together with the interest and costs of the foreclosure action; that instead of accepting it, as he was, legally obligated to do, and as this plaintiff could have compelled him to do, he induced her not to take proceedings to enforce her legal rights by compelling him to accept the amount tendered and give a satisfaction of the mortgage, or not to attend the sale and there protect her rights by representing that after he had obtained title he would reconvey to her upon receiving the amount tendered ; that the plaintiff, believing the representation made to her that lie would reconvey, took no proceedings to compel him to accept the amount tendered, permitted him to purchase at the sale and after he had acquired title she again tendered the amount due, principal, interest and costs of the foreclosure action to that time for a reconveyance, which he refused to give; and that her equity in the property, over and above all incumbrances thereon at the time the sale took place, was $84,000, which equity has been acquired by the defendant, by reason of the representations made to the plaintiff, and upon which she acted.
A court of equity would be of little use if, upon such facts, it refused to exercise its equitable powers to aid a party who had been thus deprived of his property. It may be that the plaintiff is not entitled to all the relief asked. She was represented in the foreclosure action by an attorney, and had notice of all the proceedings therein. The judgment in that action undoubtedly binds her as to the amount found due, including costs and disbursements. It is a. final adjudication upon that subject. But it does not determine the question of her right to redeem or get some relief from the defendant,
For these reasons the judgment and order appealed from are reversed, with costs, and the motion for judgment denied, with ten dollars costs.
Ingraham, Clarke, Houghton and Scott, JJ., concurred.
Judgment and order reversed, with costs, and motion for judgment denied,.with ten"dollars costs. Settle order on notice.