80 N.Y.S. 739 | N.Y. App. Div. | 1903
The action was brought to foreclose a mortgage made'by the appellant to secure the sum of $2,000, with interest. The mortgage was due on the 6th day of April, 1905, and it contained a clause that if there was default in the payment of the interest for thirty days the principal sum should at once become due at the option of the
The defendant Donohue appealed to this court from the interlocutory judgment sustaining the demurrer, and that appeal resulted in a reversal of the interlocutory judgment, and the demurrer was overruled. (Schieck v. Donohue, 77 App. Div. 321.) The order of the Appellate Division reversing the interlocutory judgment allowed the defendant Donohue to serve an amended answer upon payment of costs, and acting under this leave, she served an amended answer and tendered the costs. She thereupon moved to vacate the final judgment, which motion was denied, and from the order entered thereon she appeals.
We think this motion should have been granted. Upon the reversal of the interlocutory judgment sustaining the demurrer, there was an issue upon the pleadings to be tried before the plaintiff was entitled to final judgment, and the judgment that has been entered based upon this interlocutory judgment, subsequently reversed^ necessarily fell with the reversal of the interlocutory judgment. The final judgment entered was .without authority to support it, and the defendant who had interposed an answer which set up a defense to the action is entitled to have the validity of that defense disposed of upon a trial. If the plaintiff proceeded upon an interlocutory judgment and obtained a final judgment based upon it, where the interlocutory judgment was subject to review by the appellate court, that final judgment is subject to be set aside upon a reversal of the interlocutory judgment upon which it was based. The final judgment does not recite that it was entered on notice to the
The defendant also asks to be awarded restitution of the property sold under the final judgment that was entered, and that the purchaser account, for the rents and profits collected by him from the time he took possession of the premises. Although the purchaser was required by the order to show cause why the application should not be granted, this order and the motion papers were not served upon him. He was not, therefore, á party to the proceeding. It appeared that upon the sale of the premises in August, 1902, under the final judgment, the property was bid in by the plaintiff who immediately assigned the bid to one Toensing, who subsequently complied with the terms ■ of the sale and paid as the consideration of the deed of the premises the sum of $3,100, and subsequently paid the taxes and other sums for repairs to the property, and interest on the first mortgage which was superior to the mortgage foreclosed by the plaintiff. It is quite apparent that the court below was correct in refusing to award restitution of the premises upon this application. It is not necessary to determine whether the title of this purchaser is protected by sections 1292 and 1323 of the Code of Civil Procedure. That quéstion can only be settled in a proceeding to which the purchaser is a party; and such restitution should not be awarded until after the issues raised by the answer have been tried, and it is finally determined that the plaintiff is not entitled to a judgment directing, a sale of the property. It is alleged by the plaintiff, and not denied, that lie is amply responsible and able
It follows that the order appealed from must be reversed so far as it denies the motion to vacate the final judgment, and to that extent the motion should be granted, with ten dollars costs and disburse-, ments of appeal and ten dollars costs of motion, and that in other respects the order appealed from should be affirmed.
Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.
Order reversed in so far as it denies motion to vacate final judgment, and to that extent motion granted, with ten dollars costs and disburseménts of appeal and ten dollars costs of motion; in other respects, order affirmed.