25 N.Y. St. Rep. 1005 | New York City Court | 1889
This is an appeal from a judgment in favor of plaintiff in an action of ejectment. The plaintiff derives his title through a sale under a foreclosure decree of a mortgage given by the admitted owner in fee of the premises. The defendant Rionda asserts the existence of certain alleged irregularities or defects in the foreclosure suit, which, he affirms, defeat the title so derived. That the order of February 24, 1886, in the foreclosure suit, vacating the order of October 6, 1875, (relieving Wing from his, bid for the premises at the foreclosure sale by the referee,) and directing the completion of the sale to Wing, is void and of no effect, because notice of the application for such order of February 24, 1886, was not given to Suydam, defendant therein, (who was then dead,) and to Rionda, defendant herein, though not a party therein. Suydam, before his death, but after the decree of foreclosure was entered, conveyed his interest in the premises to one I-Iusted, who never had himself made a party to that suit. Therefore, at the time the order was made which is complained of, Husted had failed to secure to himself the right to notice of motions in that suit. Suydam, at that time, had parted with his interest in the premises, and, therefore, the order in no way affected his rights. Then, again, Suydam was dead at that time; but that the death of the defendant, in a foreclosure after decree, does not abate or interfere with the jurisdiction of the court to execute the decree, and to do all that is necessary or incidental to such execution, has been repeatedly decided. Hays v. Thomae, 56 N. Y. 521; Harrison v. Simons, 3 Edw. Ch. 394; Cazet v. Hubbell, 36 N.
This action was properly brought in the name of Wing, for the benefit of Hoagland, pursuant to section 1501, Code Civil Proc.
The judgment appealed from must be affirmed for the foregoing reasons, with costs.
Osborne, J„ concurs.
Not reported.