In re Whalen

New York Supreme Court

In re Whalen

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

New York Supreme Court·Decided March 12, 1930·Published

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] and 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.

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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] and 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.

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

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