Willemen v. Burke Building Co.
235 A.D. 687
| N.Y. App. Div. | 1932

Order reversed on the law and the facts, without costs, and motion granted to the extent of striking out the first, second, fourth and fifth items from the terms of sale. We are of opinion that, since the appellant mortgagee was not made a party defendant to the action prior to the entry of the first judgment of foreclosure and sale, its interests were not affected by that judgment and, therefore, the incumbrances after such sale may not be preferred by making the sale under the new and proper judgment subject to them. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.