Kempf v. Biers , 162 N.Y.S. 780 ( 1916 )

Per Guriam:

We are of opinion that the rights of the appellant Frederick Biers have not been prejudiced by the orders appealed from or the amendment of the judgment for the reason that the redemption by said appellant from the execution sale had the effect by the express terms of section 1448 of the Code of Civil Procedure to render the execution sale null and void. The effect of such redemption, therefore, was to revive or continue the lien of the judgment on which the execution sale was made to the extent it remained unpaid. (Titus v. Lewis, 3 Barb. 70.) This lien attached to the surplus fund arising from the foreclosure of the prior mortgage and was the first lien thereon. Hence, appellant was in no way injured by the order which in effect provided for the payment of this lien by the referee from the surplus moneys arising on the foreclosure sale.

We do not approve the practice of providing for the distribution of surplus moneys by amendments to the foreclosure judgment after the sale has taken place, nor is it necessary to consider the power of the court at Special Term to make such amendments. We simply hold that appellant was not injured thereby and that we should not interfere with the action of the court below in his behalf.

The judgment and orders appealed from should be affirmed, with ten dollars costs and disbursements to the defendant John T. Ryan to be paid by appellant Frederick Biers.

All concurred.

Judgment and orders affirmed, with ten dollars costs and disbursements to the defendant John T. Ryan to be paid by the appellant Frederick Biers.