97 Misc. 434 | N.Y. Sup. Ct. | 1916
A deficiency judgment in foreclosure has been taken against the defendant Dora Law
The rule in this state is well settled that the liability of her grantor for the mortgage debt was essential to the creation of any liability on her part. Vrooman v. Turner, 69 N. Y. 280; Wager v. Link, 134 id. 122; 150 id. 549; Clinton v. Buffalo Land Security Co., 55 App. Div. 440; Williams v. Van Geison, 76 id. 592; Jenkins v. Bishop, 136 id. 104. There is no doubt that the general rule is that the assumption of ,a mortgage in a deed and an agreement to pay the mortgage debt does not render the grantee personally liable for the mortgage debt unless the grantor was himself so liable when the deed was given. Williams v. Van Geison, 76 App. Div. 592, 596. This rule rests upon the principle that where the grantor is not bound there is no basis for the promise of the grantee and the mortgagee can take no advantage of the promise. Vrooman v. Turner, 69 N. Y. 280, 284. There being no liability on the part of the defendant Dora Lawrence, no deficiency judgment should have been entered against her and she should be relieved therefrom.
Not having appeared in the action she was not in a position to appeal from the judgment and her only recourse was a motion to vacate the judgment for mistake or excusable neglect. The matter complained
The situation in this case arises not from any irregularity in entering the judgment or for any error in fact arising upon the trial but by reason of the failure of the defendant to appear and try out the issue of her liability. In such a case the judgment cannot be corrected by striking the deficiency judgment from the record, but the default may be opened. De Lavalette v. Wendt, 75 N. Y. 579; Corn Exchange Bank v. Blye, 119 id. 414; Leonard v. Columbia Steam Navigation Co., 84 id. 48. An order is granted opening the default of the defendant upon the payment by the defendant of motion costs and the taxable costs of the action or canceling the deficiency judgment by filing a satisfaction piece of the judgment upon the payment by the defendant of motion costs at the option of the plaintiff to be exercised within thirty days from the service of an order in accordance herewith.
■Ordered accordingly.