Harrison v. Union Trust Co. , 80 Hun 463 ( 1894 )

PER CURIAM.

The demurrer admits the allegations in the complaint that in the action brought by Aaron R. Stevens against James-O. Hall and others, in which defendant the Union Trust Company of Hew York, the mortgagee in the mortgage sought to be foreclosed,, was a party defendant, judgment was entered on Hovember 10, 1891,. and the order for the amendment thereof on April 5, 1892; that a copy of said judgment and order for the amendment were served on the trust company on May 20, 1892, after the foreclosure sale,, but before the consummation thereof; that the trust company had refused to obey the direction contained in the amended judgment,, unless upon payment of $5,000. Until the sale was consummated, and the order confirming it entered, the Stevens action was pending before the court; and we are of the opinion that any order made by such court for an amendment of the judgment, although erroneous and improperly granted, cannot, in this action, be treated as void. It was an order made in an action in which defendant was a party. The court had jurisdiction of the parties and the subject-matter of the action. If the order in question was erroneous, the remedy of the trust company was by motion to vacate it. Stannard v. Hubbell, 123 N. Y. 520, 526, 527, 25 N. E. 1084; Audubon v. Insurance Co., 27 N. Y. 221. Having acquiesced in the judgment as amended, it is not for the trust company, in this action, to claim that such amended judgment is void. We are not prepared to hold that the order in question was improperly or erroneously granted, if we could properly consider that question in this action. See Trust Co. v. Olmsted, 102 N. Y. 729, 7 N. E. 822; Muller v. Dows, 94 U. S. 444, 449, 450. But, as above suggested, the order of the supreme court in the Stevens action for the amendment of the judgment should not be reviewed in this action. Therefore, when this action was commenced, a judgment in an action in the supreme court, in which the Union Trust Company of Hew York was a party, for the foreclosure of the mortgage in question, required the trust company to execute a conveyance to the purchaser at the mortgage sale. It has refused to do so. Hence it is plain that the trust has not been fully executed, and also that the declination of the trust company to obey the order of the court to execute a conveyance affords a ground for its removal as trustee; at least, a court on trial might deem such refusal of defendant to execute a deed, in connection with other facts stated in the complaint, sufficient to justify such a removal.

We are also of opinion that plaintiff, as owner of the bonds secured by the mortgage sought to be foreclosed in the Stevens action, and entitled to her pro rata part of the proceeds thereof, had a sufficient interest to maintain the action. She is interested in having the sale consummated. In fact the bondholders secured by the mortgage in question are the only persons interested. The purchaser at the mortgage sale, although, perhaps,' a proper, was not a necessary, party; and, as no objection was made in the demurrer to the complaint on the ground of a defect of parties, the omission of such purchaser as a party defendant does not prevent the maintenance of the action.

Without considering other questions involved, we think the judgment in the case should be affirmed, with costs. The appellant desiring to submit the question involved to the court of appeals, the certificate provided for by subdivision 4, § 190, of the Code of ■Civil Procedure, will be granted. The same disposition should be made of the. similar case of Aaron R. Stevens and Andrew A. Douglas v. The Union Trust Company of New York and Others. All concur.