Kentona Land Co. v. Wire , 54 N.Y.S. 751 ( 1898 )

HARDIN, P. J.

Plaintiff’s complaint does not allege any fraud or fraudulent acts in the prosecution of the judgment of foreclosure of the mortgage given by Arend to Warren Wire, dated April 8, 1892. Nor does the evidence of the plaintiff show any fraud or mistake in the proceedings to foreclose the mortgage held by Wire. ■ The Kentona Land Company was a party defendant in the foreclosure action, and is bound by the judgment entered in that action, which remains in full force and vigor; and the referee’s report of sale was filed and remained in full force at the time of the commencement of this action. The plaintiff, the Kentona Land Company, had, in the deed which it received of the north half of the premises, undertaken to pay $6,609.06 upon the $10,000 mortgage, which was foreclosed, which undertaking the plaintiff wholly failed to comply with. In the absence of any allegations of fraud or mistake in the foreclosure proceedings had to enforce the mortgage given by Arend to Warren Wire for $10,000, dated April 8, 1892, it is not perceived that the plaintiff, being a party to that action, is entitled to overhaul the judgment and the proceedings which have been completed in the foreclosure action, and which resulted in securing to the holder of that mortgage the full amount due thereon, thus causing a satisfaction and discharge of the mortgage and judgment entered thereon. The referee who made the sate in the foreclosure action followed the provisions of the statute which provided for sale in the inverse order of alienation. It is not necessary to determine in this action what rights the plaintiff herein might have had by reason of its relation to the mortgaged property, if they had been asserted in the foreclosure action, as they might have been pursuant to section 521 of the Code of Civil Procedure. Nor is it necessary to determine what relief it might have been entitled to had it appeared and filed exceptions to the referee’s report of sale within the time prescribed by law, asserting its supposed equity. While the judgment of the county court and the proceedings in that action remain in full force, the plaintiff is not entitled to the relief awarded to it by the judgment in this action.

Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.