In re Howe

New York Supreme Court

In re Howe

16 N.Y.S. 465, 68 N.Y. Sup. Ct. 608, 41 N.Y. St. Rep. 877, 61 Hun 608, 1891 N.Y. Misc. LEXIS 548

DecidedNovember 30, 1891

StatusPublished

This text of 16 N.Y.S. 465 (In re Howe) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Howe, 16 N.Y.S. 465, 68 N.Y. Sup. Ct. 608, 41 N.Y. St. Rep. 877, 61 Hun 608, 1891 N.Y. Misc. LEXIS 548 (N.Y. Super. Ct. 1891).

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Opinions

Ingraham, J.

The respondent admits having executed the bond upon which the appellants ask leave of the court to sue, and it appears that, in an action to foreclose a mortgage given to secure the payment of the bond, the respondent appeared and interposed an answer, alleging the defense of usury, and that subsequently such answer was stricken out as sham, and a judgment of foreclosure and sale entered, whereupon the respondent was adjudged to pay any deficiency to plaintiff. This judgment is a conclusive adjudication that defendant had no defense to the action, and was indebted to plaintiff’s testator in the amount of the bond. As the property covered by the mortgage was subsequently sold to satisfy a prior lien, nothing was realized in the foreclosure suit, and, as the statute of limitations had not run against the bond, the mere delay in making the application is not a reason for denying the motion. There is no rule that requires that this application should be made at any particular time, and, by denying it on the ground of loches in making the motion, the court, in effect, establishes a different time within which an action upon a bond must be brought than that established by law. The allegation that some arrangement was made whereby the obligor and his co-obligor would be released from any personal obligation upon the bond is conclusively established to be without foundation by the judgment subsequently entered in the foreclosure action. He was represented by his attorney in that action, and interposed an answer. He did not allege therein the making of the agreement now brought forward as a reason for denying this application, and the effect of the order appealed from is to reverse the adjudication of this court as to the liability of the defendant upon the mere statement of the respondent, on this application, that, in consequence of an agreement made before the entry of the judgment against him, he was not to be personally responsible. Upon the bond and judgment itself the petitioner is entitled to recover, and no reason is shown why they should not be allowed to commence the action. The order appealed from should be reversed, with $10 costs and disbursements, and motion granted.

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Ingraham, J.

The respondent admits having executed the bond upon which the appellants ask leave of the court to sue, and it appears that, in an action to foreclose a mortgage given to secure the payment of the bond, the respondent appeared and interposed an answer, alleging the defense of usury, and that subsequently such answer was stricken out as sham, and a judgment of foreclosure and sale entered, whereupon the respondent was adjudged to pay any deficiency to plaintiff. This judgment is a conclusive adjudication that defendant had no defense to the action, and was indebted to plaintiff’s testator in the amount of the bond. As the property covered by the mortgage was subsequently sold to satisfy a prior lien, nothing was realized in the foreclosure suit, and, as the statute of limitations had not run against the bond, the mere delay in making the application is not a reason for denying the motion. There is no rule that requires that this application should be made at any particular time, and, by denying it on the ground of loches in making the motion, the court, in effect, establishes a different time within which an action upon a bond must be brought than that established by law. The allegation that some arrangement was made whereby the obligor and his co-obligor would be released from any personal obligation upon the bond is conclusively established to be without foundation by the judgment subsequently entered in the foreclosure action. He was represented by his attorney in that action, and interposed an answer. He did not allege therein the making of the agreement now brought forward as a reason for denying this application, and the effect of the order appealed from is to reverse the adjudication of this court as to the liability of the defendant upon the mere statement of the respondent, on this application, that, in consequence of an agreement made before the entry of the judgment against him, he was not to be personally responsible. Upon the bond and judgment itself the petitioner is entitled to recover, and no reason is shown why they should not be allowed to commence the action. The order appealed from should be reversed, with $10 costs and disbursements, and motion granted.

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Bluebook (online)

16 N.Y.S. 465, 68 N.Y. Sup. Ct. 608, 41 N.Y. St. Rep. 877, 61 Hun 608, 1891 N.Y. Misc. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-howe-nysupct-1891.