Schmalholz v. Polhaus

49 How. Pr. 59

• Court: The Superior Court of New York City
• Decided: January 15, 1875
• Status: Published

Opinion

Monell, C. J.

None of the objections to the title are sound.

The jurisdiction” of this court cannot be questioned. Its' general equity jurisdiction, under the provisions of the Code, was fully established in Forrest agt. Forrest (25 N. Y. R., 501), and in actions for the foreclosure of a mortgage, by the express terms of section 33 of the Code. In all eases it has jurisdiction when the party is served in the county. An appearance by attorney is equivalent to personal service (Rule 14; Schwinger agt. Hickox, 46 How. Pr. R., 114). The mortgagor having parted with the equity of redemption, had no interest which rendered it necessary that he should be made a party (Denny agt. Clark, 16 How. Pr. R., 424; Van Nest agt. Latson, 19 Barb., 604).

The mortgagor’s wife not having executed the mortgage could not be divested of her inchoate right of dower, and she was not, therefore, a necessary party to this motion.

Besides, the sale was expressly subject to such dower right. The pendency of the action to set aside the deed to Polhaus is not an objection which the purchaser can raise. That deed released the dower right of the mortgagor’s wife, and she is seeking to avoid it. The purchaser, however, had notice, at the time of sale, of the existence of such dower claim, and in express terms purchased subject to it.

The plaintiff may have an order for a resale of' the property. The sum deposited with the referee on the former sale cannot be ordered to be paid'to the plaintiff. It must abide the result of the sale under this order.

As another sale could have been had, under the terms of sale, this motion was not necessary.

Besides, the plaintiff could have applied for an order to compel the purchaser to complete the purchase.

The plaintiff, therefore, not to have costs of this motion.