102 A.D. 403 | N.Y. App. Div. | 1905
The defendants appeal from an order made upon their motion vacating and setting aside a sale by a referee under a foreclosure judgment, the order confirming the sale, the report of the referee and his deed, on condition that the defendants file a bond or undertaking in $1,000 for the payment of any deficiency, after application of the amount realized on the resale, of the expenses of such resale,
The order amended the judgment by limiting the liability of Sire to “ any deficiency arising on the sale of the mortgaged premises to an amount not to exceed the sum of §3,500 with interest thereon from November 1, 1890.” It is insisted that -the interest could only be allowed from the date of the entry of the judgment, on the ground that Sire’s liability was upon his collateral bond of §3,500 for the due performance of a covenant in a lease by Ketcham as lessee to erect a building upon certain leased land within five years, and we are cited to section 1915 of the Code of Civil Procedure and Sachs v. American Surety Co. (72 App. Div. 60). But aside from the merits, the defendants mistook, their remedy. The judgment determined that the amount due was §3,500 principal and interest from November 1, 1890, until the day of the judgment. The- defendants cannot by this practice alter ■ the- decision on the merits and change the substantial rights. (Heath v. N. Y. Building Loan Banking Co., 146 N. Y. 260.) The remedy was by appeal. (Stannard v. Hubbell, 123 N. Y. 520.) This distinction appears in Corn Exchange Bank v. Blye (119 N. Y. 414, at p. 416), the authority relied upon by the appellants. The order of the court
The order should be affirmed.
Bartlett, Woodward, Rich and Miller, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.