Winterson v. Wilson

8 A.D. 619, 40 N.Y.S. 961, 75 N.Y. St. Rep. 362, 1896 N.Y. App. Div. LEXIS 2437

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1896
• Status: Published

Opinion

Per Curiam:

There is no question that the court jurisdiction an for the relief which is sought here. Whether it would be proper in such case under any circumstances to grant the relief which was given by this order, before final judgment in the action, it is not necessary to determine. Certainly such relief cannot be granted by order unless the parties interested in the mortgage are made parties to the action, so that the rights of everybody can be determined and the lien of every party to the action be transferred to the money which is substituted for the property upon which the mortgage was given. That was no tithe case here.' Mrs. Bullard, whose right to a certain portion of this property is alleged in the complaint, is not made a party to this action, and for that reason, without discussing any other reasons, the mortgage should not have been canceled, and it was erroneous to grant the order, which must be reversed, with ten dollars costs and disbursements. Present—Barrett, Rumsey, Patterson and Ingraham, JJ.