Jacobie v. Mickle , 70 Hun 599 ( 1893 )

PER CURIAM.

We think the court below reached a correct conclusion. In the foreclosure action brought by Samuel T. Guilford against the plaintiff and others on the second bond and mortgage, plaintiff was made a party defendant, and did not answer or demur; and judgment in the action was regularly and properly entered for the sale of the mortgaged premises, and for the payment of plaintiff’s bond and mortgage out of the first proceeds. We think, under the circumstances, plaintiff, being a party to that action, and not having answered or demurred, is bound by the judgment. See Guilford v. Jacobie, (Sup.) 23 N. Y. Supp. 462. It would seem almost absurd to allow the plaintiff to obtain another judgment for the sale of the mortgaged premises. It is suggested that the Guilford judgment has been reversed. But we are compelled to decide the question submitted to us on this appeal on the facts appearing in the printed case. The fact of the reversal of said judgment does not appear in the case, and did not appear ,on the trial in the court below. The proper remedy for the plaintiff, under the circumstances, is probably by motion in the court below. Parkhurst v. Berdell, 110 N. Y. 392, 18 N. E. Rep. 123.

The judgment should be affirmed, with costs.