Barker v. Burton

67 Barb. 458

• Court: New York Supreme Court
• Decided: May 15, 1877
• Status: Published

Opinion

Hardin, J.

The wife was not a necessary party to the foreclosure of this mortgage. If she had not appeared, the judgment properly allowable would not affect her prior and superior interest in the premises. (Corning v. Smith, 6 N. Y., 82. Lewis v. Smith, 9 id., 517. Merchants’ Bank v. Thomson, 55 id., 7. Crary on Spe. Proceed., 280. 1 Wait’s Prac., 129, 134.)

Section 131 of the Code provides for service of notice that no personal claim is made. That notice was served, and subsequently a stipulation given. Certainly the defendant would not have suffered if she had omitted to defend, when she could not have been harmed by any judgment the plaintiff could or proposed to take against her.

That section provides that after such notice is given, the party who unreasonably defends may be charged with costs.

What reasonable ground has the defendant for defending, in such a case ? Because the plaintiff unnecessarily made her a party, he ought not to have costs against her; and because she unnecessarily defended she isnot entitled, as a matter of right or within the principles which govern a reasonable discretion, entitled to costs.

[Onondaga Special Term, May, 1877.

Judgment will therefore be entered without costs either to the plaintiff against her, or to the defendant against the plaintiff.

Had thoe plaintiff applied for judgment under the Code of 1848, he would not be entitled to an extra allowance, without a separate order; but this application was under the Code of Remedial Justice, which provides for such an allowance in the judgment asked for.

The plaintiff may have an order clause for two per cent.

Ordered accordingly.

Hardin, Justice.]