Cole v. Kelly , 4 Silv. Sup. 571 ( 1889 )

Hardin, P. J.

After the decision at the trial term, the title of the defendant Kelly was sustained, and the lien of the plaintiff’s mortgage cut off. Kelly was entitled, upon the findings, to a judgment to that effect, as well as a provision dismissing the plaintiff’s complaint, with costs. The trial was only of the issues raised by his answer. Properly, one judgment should have been entered, allowing the plaintiff such relief as he was, by reason of the default of the other defendants, entitled to, with suitable provisions declaring the result of the trial of the issues raised by the defendant Kelly’s answer. Because the judgment entered upon the default of the other defendants contained too broad provisions, and did not properly declare the results following the decisions made by the trial term, its amendment and correction were allowed. The same result might have been attained by setting aside the judgment directed by Justice Churchill at the Oswego special term, and authorizing the entry of a judgment which should allow the plaintiff all he was entitled to against the defaulting defendants, and coupled with the proper provisions upon the determination of the issues raised by the answer of the defendant Kelly.

We see no force in the suggestion that Kelly, after a decision dismissing the plaintiff’s complaint as to him, was entitled to notice of the plaintiff’s application for relief as against the defaulting defendants. Hammond v. Morgan, 101 N. Y. 179, 4 N. E. Rep. 328, is unlike the case before us. That •was an action of replevin, and there was but one defendant; and it was a proper case for notice of motion when an application was to be made for an order affecting the form of a judgment to be rendered against such defendant. Inasmuch as the mortgage held by the plaintiff was owned by Cornelia M. Matteson at the time of the foreclosure of the mortgage under which defendant Kelly acquired title, and she was made a party, and her rights cut off by sale upon the mortgage given prior to her mortgage, the defendant Kelly can hold the premises, notwithstanding the relief given in this action, as against the defaulting defendants other than Kelly. Such is the effect to be given to the first foreclosure, in virtue of section 1632 of the Code of Civil Procedure. The judgment, as amended by the order appealed from, protects the rights of defendant Kelly. The association became a purchaser at the sale had under the prior mortgage; and, as befqre stated, such sale cut off the Matteson mortgage, which was assigned to the plaintiff. If the judgment remains as amended by the order appealed from, it Will not authorize a writ of assistance against Kelly. His rights stand adjudicated and protected. The former judgment of foreclosure, under which his grantor took title, secures to him the right of ownership and of possession to the premises. We think the order should be affirmed.

Order affirmed, with $10 costs and disbursements.