In re Whalen

New York Supreme Court

In re Whalen

136 Misc. 296, 240 N.Y.S. 587, 1930 N.Y. Misc. LEXIS 1101

DecidedMarch 12, 1930

StatusPublished

This text of 136 Misc. 296 (In re Whalen) 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 Whalen, 136 Misc. 296, 240 N.Y.S. 587, 1930 N.Y. Misc. LEXIS 1101 (N.Y. Super. Ct. 1930).

Pincite

Opinion

Rodenbeck, J.

This application is made under section 1078 of the Civil Practice Act, and am assuming no other action” include the institution of bankruptcy proceedings. The spirit of the section is to avoid two actions or proceedings to enforce the same obligation. The application may be made nunc pro tune (Earl v. David, 20 Hun, 527), but “ special circumstances ” must be shown (Equitable Life Ins. Soc. v. Stephens, 63 N. Y, 341), [297]*297and the application should be granted “ with caution.” (Morrison v. Slater, 128 App. Div. 467.) The general rule is that leave will not be granted unless “ good reasons ” be shown. (Carlin v. Lindtveit, 175 App. Div. 940.) Leave will be granted only “ in extraordinary and exceptional circumstances.” (Matter of Byrne, 81 App. Div. 74, 76.) No such circumstances appear. There is no reason why the applicants should not continue the foreclosure proceedings to a conclusion before instituting other proceedings to enforce the obligation in question. Such proceedings may not then be necessary. The motion should be denied. If the application is unnecessary, no harm can come from its denial.

Motion denied, with ten dollars costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Rodenbeck, J.

This application is made under section 1078 of the Civil Practice Act, and am assuming no other action” include the institution of bankruptcy proceedings. The spirit of the section is to avoid two actions or proceedings to enforce the same obligation. The application may be made nunc pro tune (Earl v. David, 20 Hun, 527), but “ special circumstances ” must be shown (Equitable Life Ins. Soc. v. Stephens, 63 N. Y, 341), [297]*297and the application should be granted “ with caution.” (Morrison v. Slater, 128 App. Div. 467.) The general rule is that leave will not be granted unless “ good reasons ” be shown. (Carlin v. Lindtveit, 175 App. Div. 940.) Leave will be granted only “ in extraordinary and exceptional circumstances.” (Matter of Byrne, 81 App. Div. 74, 76.) No such circumstances appear. There is no reason why the applicants should not continue the foreclosure proceedings to a conclusion before instituting other proceedings to enforce the obligation in question. Such proceedings may not then be necessary. The motion should be denied. If the application is unnecessary, no harm can come from its denial.

Motion denied, with ten dollars costs.

Cite This Page — Counsel Stack

Bluebook (online)

136 Misc. 296, 240 N.Y.S. 587, 1930 N.Y. Misc. LEXIS 1101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-whalen-nysupct-1930.

Opinion

Related

Cite This Page — Counsel Stack