Hutchinson v. Wall

Superior Court of New York

Hutchinson v. Wall

4 N.Y.S. 717, 1888 N.Y. Misc. LEXIS 1684

CourtThe Superior Court of the City of New York and Buffalo

DecidedJune 20, 1888

StatusPublished

This text of 4 N.Y.S. 717 (Hutchinson v. Wall) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hutchinson v. Wall, 4 N.Y.S. 717, 1888 N.Y. Misc. LEXIS 1684 (superctny 1888).

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Opinion

Sedgwick, C. J.

The action was in foreclosure of mortgage upon real estate. The judgment was taken by default against all of the defendants. It [718]*718appears from the record that the referee reported that the plaintiff had paid $507.50 as interest upon mortgages prior to the mortgage in action, and that the plaintiff was entitled to payment of the amount out' of the proceeds of sale. This conclusion of the referee was made part of the judgment. The complaint had not alluded to this claim of the plaintiff, or made any. demand for relief in regard to it. The purchaser objected below that he should not be compelled to take title, because the defaulting parties could successfully object to the judgment so far as it gave plaintiff judgment for anything not demanded in the complaint, and those parties would, after the purchaser had taken title, have the right to have the judgment, and sale under it, set aside. In my opinion the rights of the defaulting defendants would be to have the judgment set aside so far only as it was defective in giving judgment for the amount of interest paid upon the prior mortgages, if they had such right, which it is not necessary to determine. This would not involve setting aside the sale. The order is affirmed, with $10 costs.

Freedman, J., concurred.

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Sedgwick, C. J.

The action was in foreclosure of mortgage upon real estate. The judgment was taken by default against all of the defendants. It [718]*718appears from the record that the referee reported that the plaintiff had paid $507.50 as interest upon mortgages prior to the mortgage in action, and that the plaintiff was entitled to payment of the amount out' of the proceeds of sale. This conclusion of the referee was made part of the judgment. The complaint had not alluded to this claim of the plaintiff, or made any. demand for relief in regard to it. The purchaser objected below that he should not be compelled to take title, because the defaulting parties could successfully object to the judgment so far as it gave plaintiff judgment for anything not demanded in the complaint, and those parties would, after the purchaser had taken title, have the right to have the judgment, and sale under it, set aside. In my opinion the rights of the defaulting defendants would be to have the judgment set aside so far only as it was defective in giving judgment for the amount of interest paid upon the prior mortgages, if they had such right, which it is not necessary to determine. This would not involve setting aside the sale. The order is affirmed, with $10 costs.

Freedman, J., concurred.

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Bluebook (online)

4 N.Y.S. 717, 1888 N.Y. Misc. LEXIS 1684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutchinson-v-wall-superctny-1888.