Durham v. Chapin

The defendant was a party to an action' of foreclosure and sale, and after the sale judgment was entered against her for the deficiency. The judgment against her was set aside for the reason that no complaint asking judgment for such deficiency was properly served upon her. She was the grantee of the mortgaged premises and had assumed payment of the mortgage. The plaintiff, without obtaining leave as provided in section 1628 of the Code to sue her for the balance of the mortgage debt, sued her in this action for it. She demurred *149to the complaint, relying upon the section cited, and counsel for bobh parties appeared upon the argument of the demurrer, and the .plaintiff,- without having given defendant notice of ■ motion to that effect, asked leave to sue the defendant nunc fro tmnc as of the commencement of this action. The court sustained the demurrer and added to the order sustaining it a clause granting leave to the plaintiff to sue nunc fro time and to serve the amended complaint accordingly upon payment of the costs of the demurrer.

The defendant appeals from thé part of the order granting leave to sue nunc fro tunc, and insists that the court improperly granted it, since the defendant not having previous notice of such motion was not prepared with the facts to oppose it; and suggests that if the defendant had been duly notified of the intent to charge her with a deficiency upon the mortgage sale, the property would have been sold for a larger price.

We think that the facts stated _n the complaint, without counter affidavits impairing their force, would justify the order. (Earl v. David, 20 Hun, 527 ; affd., 84 N. Y. 634.) But in view of the suggestion of the defendant, and the fact that we sustained the sale at the same time that we relieved the defendant from the deficiency judgment (13 App. Div. 94), we now conclude to exercise our discretion in her favor, and reverse the order granting leave to sue nunc fro tunc, without costs and without prejudice to a renewal of the motion.

All concurred.

Order so far as appealed from reverse^, without costs, and without prejudice to a renewal of the motion.