| N.Y. App. Div. | May 5, 1937
Appeal from three orders, one amending a judgment of foreclosure, another denying a deficiency judgment, and the third directing the distribution to defendants of the rents and profits in the hands of a receiver. Judgment of foreclosure and sale was granted December 5, 1933. On January 3, 1936, the Special Term made an order striking from the foreclosure judgment the provision contained therein for a deficiency judgment, on the ground that all of the premises covered by the mortgage had not been sold under the judgment. On April 20, 1936, and after sale, the Special Term denied a motion for the entry of a deficiency, on the same ground upon which it granted an amendment of the judgment. On March 30, 1936, an order of the Special Term was entered, settling the accounts of the receiver, of the rents and profits, appointed in the action, and directing him to pay the moneys in his hands to the defendants, on the theory that the plaintiff was not entitled thereto. All of the orders were erroneously made. The Special Term had no power to amend the judgment more than two years after its entry, and thereby affect the substantial and vested rights of the parties therein. Plaintiff was entitled to an order for the entry of a deficiency judgment, and also to an order directing the receiver to pay the same from the funds in his hands. Bach of the orders reversed, on the law and facts, with ten dollars costs and. disbursements to the plaintiff upon the reversal of each order. Hill, P. J., McNamee, Crapser, Bliss and Heffernan, JJ., concur.