Jay v. De Groot

Upon the merits of the case, as they are shown by the affidavits, no good reason appears why judgment for the deficiency, arising on the foreclosure sale of the mortgaged property, should not be entered. Eor as the contracts for reinsurance, for the payment of the premiums of which the mortgage was assigned to the Equitable Insurance Company of London, were made in New Jersey, and ratified and approved by the court, that company would have been estopped from alleging in its own defense, that they were made in violation of the laws of the State of New York, concerning foreign insurance companies. Consequently, it would have been liable upon them, even if they were in form made in New Jersey in order to evade the requirements of the laws of this State.

The fact that they were so made, could not have been shown for the purpose of securing its own immunity from liability by that company. For that reason, it had a right to require payment of the stipulated premiums, after the securities for that purpose had been assigned and delivered to it. And that right could not be defeated by the unauthorized and unwarranted agreement made between the receiver, from whom the securities were acquired, and the debtors liable for their payment.

*207But it appears from the motion papers returned upon the appeal, that judgment for the deficiency was at one time entered by virtue of the order of the court, made on confirmation of the report of sale. Afterward, that judgment was set aside on the defendants’ motion, and the order setting it aside was affirmed on appeal by the General Term. On the argument of that motion, Mr. Chat-field swears that Mr. Whitehead was heard, both for the receiver and also for the Equitable Insurance Company of London, and used an affidavit made by Holbrook, the agent of the latter, in opposition to it. De Groot swears to the same thing, and also to the further fact, that the company appeared by its attorney, and was heard at the General Term, on the appeal taken from the order, setting aside the judgment.

Darling, to a slight extent, corroborates these statements by the fact sworn to by him, that the plaintiff used, in opposing that motion, an affidavit made by Holbrook. And that it was so opposed by the company is only denied by Holbrook. But while he denied it, he stated the further fact, which throws some slight doubt upon the effect of the denial, that he requested his attorney to obtain a rehearing of the motion, so that he might present the facts of the case to the court, but the application for the rehearing was denied. Hpon these affidavits, the preponderance as to the fact, is decidedly against the present motion; so much so, that it must be now assumed, that both the plaintiff and the Equitable Insurance Company of London, were heard in opposition to the motion, made to set aside the judgment which had been entered for the deficiency.

And, on that hearing, all the facts could have been shown, for anything now appearing to the contrary, just as well as the single affidavit made by Mr. Holbrook.

There must have been an opportunity for a full and complete hearing, as long as the insurance company was allowed to be heard at all. And it was its own fault if it neglected to show anything, then existing, which would have constituted either a legal or equitable answer to the motion. This hearing was as effectual as though the company had received notice of the motion, and had been named as a formal party to it, for the only object of those forms is, to secure to the party, an opportunity to be heard in a proceeding taken to affect his rights. And that was fully secured by the oppor*208tunity which was given to the company, and made use of by it, not only to produce affidavits and be heard on the motion itself, but afterward, also, on the argument of the appeal taken from the order, made when the motion was decided.

This made the company an. actual party to the motion, with all the advantages, as well as the disabilities, resulting from that relation to it. Among the latter is the circumstance, that a motion once decided, is ordinarily final on the matters involved, unless leave be given or obtained, to present the same matter afterward, for reconsideration and decision. This was held to be the effect of such a proceeding in Dwight v. St. John* And the company, having, and also availing itself of, the opportunity to be heard as a party to it, is fully concluded by the disposition which was then made of the judgment now desired to be entered again.†

The order appealed from was rightly made, and it should be affirmed with ten dollars costs, besides disbursements on the appeal.

Davis, P. J., and Brady, J., concurred.

Order affirmed.