Marshall v. McGee

40 N.Y. Sup. Ct. 354

• Court: New York Supreme Court
• Decided: September 15, 1884
• Status: Published

Opinion

Barnard, P. J.:

Tbe issue made by Hurley with tbe plaintiff is one for a court or jury. On tbe 7th March, 1872, tbe plaintiff, who was then tbe owner of a bond and mortgage for $450, assigned tbe same to one Mary Sherwood. Miss Sherwood then paid tbe amount ,of tbe mortgage to tbe plaintiff. Tbe plaintiff was her nephew and did not record tbe assignment' until tbe 27th November, 1875. In February, 1874, the plaintiff commenced a foreclosure in bis own name, as plaintiff, and without tbe knowledge, as is alleged, of Miss Sherwood, wbicb resulted in a sale by judicial decree in August, 1879, and in a purchase of the propei'ty by plaintiff’s attorney for $360j being tbe precise amount of bis costs in tbe action. Tbe plaintiff, in bis opposing affidavits^ testified that tbe mortgage was assigned by him as collateral security to a loan by Miss Sherwood to him for $é50, and that she is a feeble minded and old lady who acted by her brother, who directed or assented to the foreclosure in plaintiff’s name upon the understanding that the loan was to be repaid out of the money realized from the sale. This brother is dead and the case stands therefore upon the affidavits of Marshall alone. He admits making the assignment and receiving the money. He admits keeping the papers, and that he did not record the assignment. Miss Sherwood subsequently assigned the mortgage to Hurley and he has a right to a trial. Neither he or Miss Sherwood are barred by the judgment as it stands. Neither are parties to it. The case is not one provided for or within section 1290 of the Code. The motion is not one to set aside a judgment “ for error in fact not arising upon the trial,” which is limited to two years from its recovery. An issue of fact not arising upon the trial is one which can be asserted by a party who avers infancy. (Graham’s Pr., 932.) That the judgment thereby is bad although it appears good upon a trial of the issue as made. The section does not include other than parties. There can be no error in fact as to strangers. Even if Hurley or Miss Sherwood had been made defendants and had not been legally served with process, the judgment would not have concluded them in two years under this section. This would be no error in fact, but simply a failure to obtain jurisdiction over them. The attorney who purchased at the sale got no better right than his client had to give. What that was, a trial on the merits only can determine. The order should be affirmed, with costs and disbursements.

Pbatt, J., concurred; Dykman, J-, not sitting.

Order affirmed, with costs.