11 N.Y.S. 797 | N.Y. Sup. Ct. | 1890
The precise question involved in this motion has been passed upon, after argument and full consideration, by the general term of the fourth department, in the ease of Grow v. Garlock, 29 Hun, 598. In this case it was expressly held that under section 1331 of the Code, as amended in 1879, an appellant, from a judgment directing the sale of mortgaged premises, has his election to give an undertaking, the condition of which is to pay any deficiency, or to give one under the first clause of the section conditioned against waste, and to pay for use and occupation. See, also, 2 Rum. Pr. p. 666, and 2 Abb. New Pr. p. 998. If the provisions of said section of the Code, as so construed, work injustice, the remedy is with the legislature. The court can only enforce the law as it finds it. It appears by the moving papers that the premises in question are vacant lots in this city. There is, therefore, no danger of waste, and, so far as appears from the papers before me, the value of the use and occupation of the same will be but nominal. The undertaking will therefore be fixed at $500, with leave to the plaintiff to move to increase the same if it shall appear hereafter that the value to the defendant of the use and occupation has in any way increased.
