Petrie v. . Adams

New York Court of Appeals

Petrie v. . Adams

71 N.Y. 79, 1877 N.Y. LEXIS 470

DecidedOctober 10, 1877

StatusPublished

This text of 71 N.Y. 79 (Petrie v. . Adams) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Petrie v. . Adams, 71 N.Y. 79, 1877 N.Y. LEXIS 470 (N.Y. 1877).

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Opinion

Allen, J.

Plaintiffs and defendant Adams bring cross-appeals from the judgment of the Supreme Court modifying •and as modified affirming the judgment of the same court at Special Term. The sole controversy is as to the priority of the liens of the respective parties, the plaintiffs claiming in virtue of the mortgage to foreclose which this action was instituted, and the defendant claiming a prior lien on the mortgaged premises under a judgment against the mortgagor on which there is due less than three hundred dollars. There is no controversy as to the validity of the respective incumbrances or the amounts due thereon, and the only question is as to which is entitled to a preference. The judgment at Special Term deferred the judgment to the mortgage, and the judgment of the court at General Term gave the mortgage a preference for only a portion of the amount due thereon, and deferred the lien of the mortgage for the residue to that of the judgment. The only question, therefore, is whether the judgment shall be paid in preference to the mortgage or a part of it. If the plaintiffs succeed in their appeal, and the judgment is postponed to the entire mort *81 gage, the defendant may not be able to collect his judgment, from the mortgaged premises; and if the defendant succeeds in his appeal, and the judgment is given a preference and priority in payment to the mortgage, the pkiintifis may to the amount of the judgment be deprived of the benefit of the mortgage. The amount in controversy, is therefore, the amount due on the judgment less than three hundred dollars. The question is the same, so far as the amount in controversy is concerned, as if payment of the judgment had been set up in answer to it as an alleged lien upon the premises. Neither party can gain or lose more than the amount due upon the defendant’s judgment by any judgment that has been or can be given. “The matter in controversy, excluding costs, is less than five hundred dollars,” and an appeal cannot be taken without an order of the Supreme Court. . (Code, § 191, sub. 3, Laws of 1874, chap. 322.) This court has no jurisdiction in the premises.

The appeals must be dismissed, and as both parties have appealed, the dismissal is without costs to either party as against the other.

All concur, except Folger and Rapadlo, JJ., absent.

Appeals dismissed.

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Allen, J.

Plaintiffs and defendant Adams bring cross-appeals from the judgment of the Supreme Court modifying •and as modified affirming the judgment of the same court at Special Term. The sole controversy is as to the priority of the liens of the respective parties, the plaintiffs claiming in virtue of the mortgage to foreclose which this action was instituted, and the defendant claiming a prior lien on the mortgaged premises under a judgment against the mortgagor on which there is due less than three hundred dollars. There is no controversy as to the validity of the respective incumbrances or the amounts due thereon, and the only question is as to which is entitled to a preference. The judgment at Special Term deferred the judgment to the mortgage, and the judgment of the court at General Term gave the mortgage a preference for only a portion of the amount due thereon, and deferred the lien of the mortgage for the residue to that of the judgment. The only question, therefore, is whether the judgment shall be paid in preference to the mortgage or a part of it. If the plaintiffs succeed in their appeal, and the judgment is postponed to the entire mort *81 gage, the defendant may not be able to collect his judgment, from the mortgaged premises; and if the defendant succeeds in his appeal, and the judgment is given a preference and priority in payment to the mortgage, the pkiintifis may to the amount of the judgment be deprived of the benefit of the mortgage. The amount in controversy, is therefore, the amount due on the judgment less than three hundred dollars. The question is the same, so far as the amount in controversy is concerned, as if payment of the judgment had been set up in answer to it as an alleged lien upon the premises. Neither party can gain or lose more than the amount due upon the defendant’s judgment by any judgment that has been or can be given. “The matter in controversy, excluding costs, is less than five hundred dollars,” and an appeal cannot be taken without an order of the Supreme Court. . (Code, § 191, sub. 3, Laws of 1874, chap. 322.) This court has no jurisdiction in the premises.

The appeals must be dismissed, and as both parties have appealed, the dismissal is without costs to either party as against the other.

All concur, except Folger and Rapadlo, JJ., absent.

Appeals dismissed.

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Bluebook (online)

71 N.Y. 79, 1877 N.Y. LEXIS 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petrie-v-adams-ny-1877.