69 N.Y.S. 807 | N.Y. Sup. Ct. | 1901
I hold with Mr. Justice Werner that the foreclosure for interest only while extraordinary practice was a mere irregularity. Stuyvesant v. Weil, 26 Mise. Rep. 445. No one could take advantage of the irregularity except the defendant Stockton by proceedings directed against the judgment in the foreclosure suit. She has taken no steps, nor does she in her present pleading make any offer to do equity. The present foreclosure for principal and interest is regular, the defendant Stockton was properly made a party, and even were the previous judgment void, the one here sought would bar all her rights. Nor is any valid defense interposed by the defendant Weil, the purchaser from the grantee under the referee’s deed. He is bound by the positive averments of his answer that he is the owner and by the covenants of the deed under which he took the property expressly subject to the mortgage now sought to be foreclosed. Under these circumstances even were there adequate proof, he can claim no rights as mortgagee in possession, or of subrogation to those of the plaintiffs. The defendant Stuyvesant, who has made a contract of purchase with the defendant Weil, obviously stands in the same position as his vendor. If he shall ultimately prevail in his suit for specific performance, he will have no further interest in the property; if he shall fail, then according to his contract he takes expressly subject to the mortgage here in suit.
Finally, it is claimed that the complaint is defective in that it does not comply with section 1628 and section 1629 of the Code. Section 1628 requires leave of court to maintain a suit to recover any part of the mortgage debt where there has been final judgment for the plaintiff in an action to foreclose a mortgage upon real property, and section 1629 requires the complaint to state whether any other action has been brought to recover any part of the mortgage debt. Even were leave necessary in this suit, I should, on the theory that these sections are not jurisdictional but relate to practice merely (Reichert v. Stilwell, 67 N. Y. Supp. 1062), be disposed to.grant it nunc pro tunc. Earl v. David, 20 Hun, 527; affd. 86 N. Y. 634. The plaintiffs, how
There should be judgment for the plaintiffs, with costs.
Judgment for plaintiffs, with costs. '
