Catlin v. Harned

New York Court of Chancery

Catlin v. Harned

3 Johns. Ch. 61, 1817 N.Y. LEXIS 201, 1817 N.Y. Misc. LEXIS 60

CourtNew York Court of Chancery

DecidedOctober 15, 1817

StatusPublished

Cited by1 cases

This text of 3 Johns. Ch. 61 (Catlin v. Harned) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Catlin v. Harned, 3 Johns. Ch. 61, 1817 N.Y. LEXIS 201, 1817 N.Y. Misc. LEXIS 60 (N.Y. 1817).

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Opinion

The Chancellor.

The defendants who. have disclaimed are entitled to costs against the plaintiff, to be paid out qf the fund, if sufficient, to satisfy the demand of the plaintiff" and their costs ; and if not sufficient, then to be paid by the plaintiff. They were not called upon nor requested to disclaim, by release or otherwise, before suit brought, which application to them would, probably, have saved the necessity of making them defendants. A very slight refusal or neglect, on the part of these defendants, might be sufficient to deprive them of costs; but without fault, and even ignorant, as the judgment creditor may be supposed to be, of the mortgage, they ought not to be sent out of court without their costs. But the allowance of costs at all to these defendants, is attended with some difficulty, if those costs are eventually to fall on the plaintiff; for he was under the necessity, as it is generally understood, of mailing the subsequent incumbrancers parties. In Hankey v. Wilson, cited by Cooper, in his treatise of pleadings, (p. 311.) it appears that a subsequent mortagee who had disclaimed, was denied costs. It is a question, on which different opinions may be entertained; but where the parties stand .equally fair, in every respect, I think, that the plain. [63]*63ütf, the actor, who brings the other into the court, ought to pay the expense.

Order accordingly.

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The Chancellor.

The defendants who. have disclaimed are entitled to costs against the plaintiff, to be paid out qf the fund, if sufficient, to satisfy the demand of the plaintiff" and their costs ; and if not sufficient, then to be paid by the plaintiff. They were not called upon nor requested to disclaim, by release or otherwise, before suit brought, which application to them would, probably, have saved the necessity of making them defendants. A very slight refusal or neglect, on the part of these defendants, might be sufficient to deprive them of costs; but without fault, and even ignorant, as the judgment creditor may be supposed to be, of the mortgage, they ought not to be sent out of court without their costs. But the allowance of costs at all to these defendants, is attended with some difficulty, if those costs are eventually to fall on the plaintiff; for he was under the necessity, as it is generally understood, of mailing the subsequent incumbrancers parties. In Hankey v. Wilson, cited by Cooper, in his treatise of pleadings, (p. 311.) it appears that a subsequent mortagee who had disclaimed, was denied costs. It is a question, on which different opinions may be entertained; but where the parties stand .equally fair, in every respect, I think, that the plain. [63]*63ütf, the actor, who brings the other into the court, ought to pay the expense.

Order accordingly.

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Bluebook (online)

3 Johns. Ch. 61, 1817 N.Y. LEXIS 201, 1817 N.Y. Misc. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catlin-v-harned-nychanct-1817.

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