Schultz v. Mead

8 N.Y.S. 663 | N.Y. Sup. Ct. | 1890

Pratt, J.

The principle laid down in the case of Mead v. Spink, 1 N. Y. Supp. 390, is decisive of this case. This case does not fall within section 1628 of Code of Civil Procedure, as that section has reference to the original debt the mortgage was given to secure. One purpose of the section is to prevent more than one suit, and one bill of costs, upon the bond of original indebtedness. The defendant is concluded by the deficiency, and the plaintiff had the right to sue upon that judgment. The judgment became a new obligation upon its being docketed; and the fact that plaintiff’s assignor made a profit upon his purchase of the mortgaged premises was entirely immaterial. The dissenting opinion in the case of Mead v. Spink may be what the law ought to be; but it was overruled by .this general term, and such decision is conclusive in this contention. Judgment must be affirmed, with costs. All concur.