Metropolitan Museum of Art v. Clement

Appellate Division of the Supreme Court of New York

Metropolitan Museum of Art v. Clement

265 A.D. 1056, 39 N.Y.S.2d 397, 1943 N.Y. App. Div. LEXIS 6895

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 1943

StatusPublished

This text of 265 A.D. 1056 (Metropolitan Museum of Art v. Clement) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Metropolitan Museum of Art v. Clement, 265 A.D. 1056, 39 N.Y.S.2d 397, 1943 N.Y. App. Div. LEXIS 6895 (N.Y. Ct. App. 1943).

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Opinion

The failure of the plaintiff to obtain the property on its own foreclosure sale does not estop the respondent from asserting the provision of section 1083-a of the Civil Practice Act against plaintiff’s claim for an absolute deficiency judgment. That section requires only an actual sale of the property in the foreclosure action and its application in the present case will not constitute a withdrawal of all remedies, for the plaintiff has pursued the remedy of foreclosure and its second mortgage lien has been transferred from the property to the purchase price received at the foreclosure sale. Dorff v. Bornstein (277 N. Y. 236) does not sustain the plaintiff’s contention that the second mortgage lien should reattach to the property. In any event said lien cannot reattach where the plaintiff has confirmed the sale and where the court has no jurisdiction over the purchaser at the foreclosure sale. Close, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.

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The failure of the plaintiff to obtain the property on its own foreclosure sale does not estop the respondent from asserting the provision of section 1083-a of the Civil Practice Act against plaintiff’s claim for an absolute deficiency judgment. That section requires only an actual sale of the property in the foreclosure action and its application in the present case will not constitute a withdrawal of all remedies, for the plaintiff has pursued the remedy of foreclosure and its second mortgage lien has been transferred from the property to the purchase price received at the foreclosure sale. Dorff v. Bornstein (277 N. Y. 236) does not sustain the plaintiff’s contention that the second mortgage lien should reattach to the property. In any event said lien cannot reattach where the plaintiff has confirmed the sale and where the court has no jurisdiction over the purchaser at the foreclosure sale. Close, P. J., Carswell, Johnston, Adel and Taylor, JJ., concur.

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Bluebook (online)

265 A.D. 1056, 39 N.Y.S.2d 397, 1943 N.Y. App. Div. LEXIS 6895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-museum-of-art-v-clement-nyappdiv-1943.

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