Engle v. Underhill

3 Edw. Ch. 249, 1838 N.Y. LEXIS 251, 1838 N.Y. Misc. LEXIS 20

• Court: New York Court of Chancery
• Decided: December 3, 1838
• Status: Published

Opinion

The Vice-Chancellor :

It was a common practice, be fore the passage of the revised statutes, for a mortgagee to proceed at law upon the bond at the same time that he proceeded in this court upon the mortgage. The revisers, however, very properly thought this unnecessary, and the statute now provides for a decree over against the mortgagor, as a substitute for a judgment at law, and takes away the remedy at law on the bond, while a bill of foreclosure and sale of the mortgaged premises is pending: “ unless authorized by the court of chancery(2 R. S. 191). Here is a discretion vested in this court, but which is not to be made use of, except in extraordinary cases. And the fact of deterioration in the value of the mortgaged premises by fire is not a sufficient ground to allow this complainant to work two remedies at the same time. He might, himself, have guarded against the loss by an insurance.

Motion denied, with costs.