Mutual Life Insurance v. National Bank of Newburgh

New York Supreme Court

Mutual Life Insurance v. National Bank of Newburgh

25 N.Y. Sup. Ct. 371

DecidedJuly 15, 1879

StatusPublished

This text of 25 N.Y. Sup. Ct. 371 (Mutual Life Insurance v. National Bank of Newburgh) 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

Mutual Life Insurance v. National Bank of Newburgh, 25 N.Y. Sup. Ct. 371 (N.Y. Super. Ct. 1879).

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Opinion

Gilbert, J. :

We think that this proceeding is authorized by section 604 of the Code of Civil Procedure. An action of foreclosure by sale being one quasi in rem, may properly be characterized as one that is pending, until the sale has been confirmed and the purchaser has been let into jjossession. Until that has been done, acts, such as this injunction restrains, are manifestly in violation of the plaintiff’s rights respecting the subject of the action, and they tend to render the judgment in a material degree ineffectual.

The question whether the machinery in controversy is a part of the realty with which it is connected is largely one of fact. There is ample evidence to warrant a finding that it is actually annexed to the realty, and that such annexation was made by the owner thereof with the intention of making the machinery a permanent accession to the freehold.

We think, therefore, the conclusion reached at Special Term is correct. (Potter v. Cromwell, 40 N. Y., 287; McRea v. Cent. Nat. Bk., 66 id., 489.)

The order must be affirmed, with costs and disbursements.

Present — Gilbert and Dyeman, JJ.; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.

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Gilbert, J. :

We think that this proceeding is authorized by section 604 of the Code of Civil Procedure. An action of foreclosure by sale being one quasi in rem, may properly be characterized as one that is pending, until the sale has been confirmed and the purchaser has been let into jjossession. Until that has been done, acts, such as this injunction restrains, are manifestly in violation of the plaintiff’s rights respecting the subject of the action, and they tend to render the judgment in a material degree ineffectual.

The question whether the machinery in controversy is a part of the realty with which it is connected is largely one of fact. There is ample evidence to warrant a finding that it is actually annexed to the realty, and that such annexation was made by the owner thereof with the intention of making the machinery a permanent accession to the freehold.

We think, therefore, the conclusion reached at Special Term is correct. (Potter v. Cromwell, 40 N. Y., 287; McRea v. Cent. Nat. Bk., 66 id., 489.)

The order must be affirmed, with costs and disbursements.

Present — Gilbert and Dyeman, JJ.; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.

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25 N.Y. Sup. Ct. 371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mutual-life-insurance-v-national-bank-of-newburgh-nysupct-1879.

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