Cooper Co. v. Wolf

— While the discontinuance of the foreclosure suit after entry of final judgment may not always obviate applying for leave under Code of Civil Procedure, section 1628, to bring an after-suit, these appellants are not in a position to raise that objection. Bernard Naumburg assented to the discontinuance, which also could not have aggrieved the appellant Elsa H. Naumburg, as she was not a party to the foreclosure, the summons not having been served upon her, and, therefore, she is not put to the expense of a double litigation. The judgment is, therefore, affirmed, with costs. Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred; Blaekmar, J., concurred in result.