6 N.Y.S. 370 | N.Y. Sup. Ct. | 1889
The plaintiffs in this action were the holders of a bond
and mortgage, which they foreclosed, and upon the sale a deficiency resulted, and, certain property belonging to the estate of the mortgagor having been deposited in the United States Trust Company, this action was brought to secure payment of such deficiency out of such funds. The complaint did not allege that any leave had been granted for the commencement of this action. Some of the defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and such demurrer was sustained because it did not appear upon the face thereof that leave to commence the action had been duly obtained under section 1628, Code Civil Proc.
Section 1628. “While an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the. court in which the former action was brought. ”