Mason v. Ring

19 Abb. Pr. 405, 1 Rob. 650

Opinion

By the Court.

Footnotes

•

*—Bosworth, Ch. J.

The remittitur from the Court of Appeals contains the following provisions, viz.:

“And it is further ordered and adjudged that the said Superior Court may from time to time, on the application of the plaintiff, make such order as to the forty-five lots standing as security aforesaid as said Superior Court may deem proper, either by releasing entirely or in part such forty-five lots as such security, or by allowing other security to he substituted ; the said Superior Court to have the full power to do from time to time what shall be just and equitable between the parties as to security.

“ And if is further ordered, that on the delay or the default of the defendant to prosecute the inquiry hereinbefore mentioned, the plaintiff shall be at liberty to prosecute the same.' It is further ordered, that this judgment is to be without prejudice to the right of the court below to give such effect to any stipulation between the parties as such court shall think proper.”

These provisions confer upon the court authority and jurisdiction to make the order appealed from.

Assuming that the manner of exercising discretion in making the order may be reviewed on appeal, we perceive nothing justifying a reversal of so much of it as directs a release of the nine lots. The accuracy of the valuation affixed to the nine lots to be released is not questioned, and it exceeds by only a small sum the advances made by the plaintiff to pay taxes and assessments.

So much of the order as directs a reference to ascertain the amount likely to be awarded to the defendant on the final judgment in this action, while a reference is pending to determine that amount, is not free from objection. The prompt and due execution of the latter order of reference will render the former an idle ceremony. There is no reason why the amount to be allowed to the defendant should not be ascertained with reasonable diligence. If there are intrinsic, difficulties in ascertaining that sum, and if those difficulties necessarily require considerable time, there will exist the same difficulties in the way of a more speedy ascertainment of what that sum is likely to be. The plaintiff is authorized to prosecute the inquiry as to the amount actually due, if there be delay or default on the part of the defendant. And if there be no such delay or default, it is difficult to perceive why there should be a reference to ascertain the probable amount, pending the progress of a reference to ascertain the actual amount.

The plaintiff is not entitled to a release of the lots, merely because he may desire it. Any amount which may be found due to the defendant is declared to be a lien on all the lots. Unless it be shown to be a matter of special prejudice to the plaintiff to continue the existing security, so that justice to him and a due regard to his interests require that he should be permitted to substitute other security, or to have additional lots released, the defendant should not be deprived of the lien which has been adjudged in his favor.

The order must be modified, by reversing so much of it as directs a reference ; and as thus modified it must be affirmed, but without prejudice to the plaintiff’s right to apply hereafter, from time to time, on showing facts calling for the interposition of the court, for a release of further lots, with or without giving substantial security, or for such other relief as may be just.

Present, Bosworth, Ch. J., and Mohobief and White, JJ.