Knickerbocker v. Decker , 4 Dem. Sur. 128 ( 1885 )

The Surrogate.

This is a proceeding, under title 5 of chapter 18 of the Code of Civil Procedure, for the sale of certain real estate owned by the testator at the time of his death. His executrix has interposed an answer, wherein she alleges that the real estate in question was subject to three mortgages made by the testator in his lifetime ; that one of such mortgages has been foreclosed,' and that such real estate has been sold in obedience to a judgment of the Supreme court. The petitioner refers to those mortgages and declares, upon information and belief, that they were given without consideration. This the respondent denies.

Whether the mortgage, whose foreclosure was followed by the sale of the property, was or was not given in good faith, I have no power in this proceeding to determine. I cannot go behind the Supreme court judgment. But there is much force in the suggestion of the petitioner that, however well founded his claim of the invalidity of that mortgage may prove to be, he will be practically remediless if the respondent’s motion for the dismissal of his application shall be granted. The petitioner does not ask that a decree be now entered, but simply that the proceedings be kept alive in this court until he has had reasonable opportunity for attacking, in another, the foreclosure and sale whereof he complains.

His application for delay is granted (Hewitt v. Hewitt, 3 Bradf., 265).