Hays v. . Thomae

56 N.Y. 521, 1874 N.Y. LEXIS 156

Opinion

We think that this action was unnecessary. The decree made and entered before the death of the mortgagors could be executed notwithstanding their death, and binds all persons claiming any interest under them. It is to be enforced only by a sale of their interest in the property. No part of it is to be enforced inpersonam. The case of Harrison v. Simons (3 Edw. Ch. R., 394) is in point, and was, we think, correctly decided. There the death took place before enrollment of the decree. The court held that the death did not prevent the enrollment, and consequently did not prevent the execution of the decree, and denied the application to revive, as unnecessary.

The court below should have dismissed the complaint, and, under the circumstances of the case, it would have been proper to dismiss it without costs.

The judgment should be reversed, and the complaint dismissed without costs to either party in the court below, but with costs to the appellant of the appeal to this court.

All concur.

Judgment accordingly.