265 A.D. 1056 | N.Y. App. Div. | 1943
The failure of the plaintiff to obtain the property on its own foreclosure sale does not estop the respondent from asserting the provision of section 1083-a of the Civil Practice Act against plaintiff’s claim for an absolute deficiency judgment. That section requires only an actual sale of the property in the foreclosure action and its application in the present case will not constitute a withdrawal of all remedies, for the plaintiff has pursued the remedy of foreclosure and its second mortgage lien has been transferred from the property to the purchase price received at the foreclosure sale. Dorff v. Bornstein (277 N. Y. 236) does not sustain the plaintiff’s contention that the second mortgage lien should reattach to the property. In any event said lien cannot reattach where the plaintiff has confirmed the sale and where the court has no jurisdiction over the purchaser at the foreclosure sale. Close, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.
