Conger v. Callahan

252 A.D. 867, 299 N.Y.S. 975, 1937 N.Y. App. Div. LEXIS 6620

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1937
• Status: Published

Opinion

In an action in the County Court of Westchester county to foreclose a mortgage upon real property, certain defendants appeal (a) from an order of the Westchester County Court dated June 8, 1933, which strikes from the answer the separate defense; (b) from an order dated July 26,1933, which strikes out the entire answer as sham and frivolous; (c) from the judgment dated July 31, 1935, as amended by order dated August 4, 1933, in so far as said judgment as amended awards plaintiff an extra allowance of five per cent and deficiency judgment against named defendants; (d) from the order and judgment of September 16, 1933, in so far as it directs judgmentagainst named defendants. Order of June 8,1933, affirmed, without costs. Order of July 26,1933, in so far as an appeal is taken therefrom, affirmed, without costs. Order dated August 4, 1933, amending the judgment of July 31, 1933, reversed on the law and motion denied, without costs. Judgment dated September 16, 1933, modified by striking therefrom the last two paragraphs which give judgment for deficiency and direct the county clerk to docket the same, and as so modified affirmed, in so far as an appeal is taken therefrom, without costs. The court was without authority to amend the judgment in a matter of substance. (Herpe v. Herpe, 225 N. Y. 323.) Appeal from the judgment of July 31, 1933, dismissed; there is no such judgment in the record. Hagarty, Carswell, Johnston, Adel and Taylor, JJ., concur.