Field v. Hawxhurst, 9 How. Pr. 75

Field v. Hawxhurst

9 How. Pr. 75 | N.Y. Sup. Ct. | 1853

Harris, Justice.

I am inclined to think the amendment *77sought by the plaintiff is unnecessary for the purpose for which it is asked. Prior to 1830, it was the practice to ascertain the amount of all incumbrances upon mortgaged premises, before making a decree for sale. Renwick agt. Macomb, (Hopk. 277.) The 136th rule, adopted in 1830, dispensed with the necessity of ascertaining, beforehand, the liens of the defendants. If any surplus moneys remained u after satisfying the amount due the complainant, any defendant might have an order of reference, &c.” Still it was necessary that the complainant should set out in his bill all his claims upon the mortgaged premises. Town agt. White, (10 Paige, 395.) But in 1844, the year after the decision in Town agt. White, the 136th rule was amended so as to allow “ any party to the suit,” or any person not a party, who had a lien on the mortgaged premises at the time of the sale, to have an order of reference, to ascertain the priorities of the liens. The 48th rule of the court, now in force, contains the same provision. The very object of the alteration made in 1844, and which has continued unchanged until the present time, was, to save the complainant from the necessity of establishing beforehand all the claims he might have upon the mortgaged premises. As I understand the rule, it was intended that the complainant should have the same right to present and establish a claim to the surplus moneys as a defendant in the foreclosure suit, or any other person. I regard it, too, as the more convenient practice.

But, whether I am right in this construction of the rule or not, I think this motion ought not, at least in the present stage of the suit, to be granted. I know that the court may, in its discretion, even after judgment, allow a pleading to be amended, by inserting new allegations material to the case. This is an extraordinary power, and should be sparingly exercised. If the amendment is allowed, it would be necessary that the defendant should have the opportunity to controvert the new allegations. This, I suppose, from what I know of the character of the controversy, they would be very likely to do. If so, it would involve the necessity of vacating all that has been done since the reference of the former issues, or a separate trial of *78the new issues. Neither, in my judgment, would be proper at present. The motion must, therefore, be denied, with costs, but without prejudice to the right of the plaintiff to renew it, if he shall be advised so to do, after the sale of the mortgaged premises.