Bechard v. Lewis

Appellate Division of the Supreme Court of New York

Bechard v. Lewis

268 A.D. 807, 48 N.Y.S.2d 628, 1944 N.Y. App. Div. LEXIS 3565

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 3, 1944

StatusPublished

Cited by2 cases

This text of 268 A.D. 807 (Bechard v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bechard v. Lewis, 268 A.D. 807, 48 N.Y.S.2d 628, 1944 N.Y. App. Div. LEXIS 3565 (N.Y. Ct. App. 1944).

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Opinion

Appeal from an order of a Special Term entered in the Clinton County clerk’s office on April 15, 1943, denying defendants’ motion to open a deficiency judgment in a mortgage foreclosure action and to cancel the judgment of record. On March 28, 1941, plaintiffs entered a judgment against defendants for $1,118.68 representing the deficiency shown by the referee’s report of sale in a mortgage foreclosure action. A motion had been made to confirm the referee’s report and for a deficiency. This motion was opposed and the defendants asked that evidence be taken as to the market value of the property at the time of sale. The Special Term confirmed the report of sale and granted the motion for deficiency judgment for the deficiency shown in the report. This disposition by the Special Term was in accordance with National City Bank v. Gelfert (284 N. Y. 13). No appeal was taken from this judgment. On April 28, 1941, the United States Supreme Court reversed National City Bank v. Gelfert (supra). (See Gelfert v. National City Bank, 313 U. S. 221.) Defendants then moved to open the deficiency judgment and this appeal arises from the denial of such motion. No reason is shown for vacating the deficiency judgment other than the alleged mistake of law. This ground, however, does not warrant the vacating of the judgment by which the rights of the parties had become fixed and determined. The Special Term had no authority to vacate its judgment once made, because of an error of law. (Kamp v. Kamp, 59 N. Y. 212; Bohlen v. M. E. R. Co. et al., 121 N. Y. 546; Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; People ex rel. Bankers Trust Co. v. Graves, 270 N. Y. 316.) Order affirmed, without costs. Bliss, Heffernan and Seherick, JJ., concur; Hill, P. J., concurs for affirmance upon the authority of “ The Nature of the Judicial Process ” by Cardozo (p. 147); Greene v. Royal Arcanum (206 N. Y. 591) ; Royal Arcanum v. Greene (237 U. S. 531); Evans v. Supreme Council, Royal Arcanum (223 N. Y. 497); Brewster, J., taking no part.

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Appeal from an order of a Special Term entered in the Clinton County clerk’s office on April 15, 1943, denying defendants’ motion to open a deficiency judgment in a mortgage foreclosure action and to cancel the judgment of record. On March 28, 1941, plaintiffs entered a judgment against defendants for $1,118.68 representing the deficiency shown by the referee’s report of sale in a mortgage foreclosure action. A motion had been made to confirm the referee’s report and for a deficiency. This motion was opposed and the defendants asked that evidence be taken as to the market value of the property at the time of sale. The Special Term confirmed the report of sale and granted the motion for deficiency judgment for the deficiency shown in the report. This disposition by the Special Term was in accordance with National City Bank v. Gelfert (284 N. Y. 13). No appeal was taken from this judgment. On April 28, 1941, the United States Supreme Court reversed National City Bank v. Gelfert (supra). (See Gelfert v. National City Bank, 313 U. S. 221.) Defendants then moved to open the deficiency judgment and this appeal arises from the denial of such motion. No reason is shown for vacating the deficiency judgment other than the alleged mistake of law. This ground, however, does not warrant the vacating of the judgment by which the rights of the parties had become fixed and determined. The Special Term had no authority to vacate its judgment once made, because of an error of law. (Kamp v. Kamp, 59 N. Y. 212; Bohlen v. M. E. R. Co. et al., 121 N. Y. 546; Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; People ex rel. Bankers Trust Co. v. Graves, 270 N. Y. 316.) Order affirmed, without costs. Bliss, Heffernan and Seherick, JJ., concur; Hill, P. J., concurs for affirmance upon the authority of “ The Nature of the Judicial Process ” by Cardozo (p. 147); Greene v. Royal Arcanum (206 N. Y. 591) ; Royal Arcanum v. Greene (237 U. S. 531); Evans v. Supreme Council, Royal Arcanum (223 N. Y. 497); Brewster, J., taking no part.

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268 A.D. 807, 48 N.Y.S.2d 628, 1944 N.Y. App. Div. LEXIS 3565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bechard-v-lewis-nyappdiv-1944.

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