246 A.D. 548 | N.Y. App. Div. | 1935
Action for the foreclosure of a mortgage upon real property. Order granting motion of the respondent under section 1077-h of the Civil Practice Act, reversed on the law, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Section 1077-h, in so far as it purports to authorize the vacatur of a judgment of foreclosure and sale theretofore entered, is invalid. It was beyond legislative power to destroy rights vesting in the plaintiff as a consequence of the entry of the judgment herein. (Livingston v. Livingston, 173 N. Y. 377, and cases cited therein.) As was said by Ruger, Ch. J., in Gilman v. Tucker (128 N. Y. 190, 204): “ We must bear in mind that a judgment has here been rendered, and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudicartion the fruits of the judgment become rights of property. These rights became vested by the action of the court and were thereby placed beyond the reach of legislative power to affect.” Young, Hagarty, Carswell and Davis, JJ., concur; Lazansky, P. J., not voting.