Sherwood v. Ellenstein

Discontinuance, of an action for the foreclosure of a mortgage is resisted by a judgment-creditor defendant, whose lien upon the mortgaged premises, which was alive at the commencement of the action, has now ceased because of the lapse of ten years. Code Civ. Pro., § 1251; Matter of Harmon, 79 Hun, 226; Nutt v. Cuming, 155 N. Y. 309. I do not think that a right to resist the discontinuance is thus presented. .The creditor - might, perhaps,, have had a.lien on the surplus "by virtue of his standing at the commencement-of the action, but its pendency did not preclude him from enforcing his execution, and his failure to enf orce it was at the risk that the action might not be prosecuted. Certainly, he cannot compel the parties to continue the prosecution in order to enable him to discover if there may be a srirplus, and, at. most, for the plaintiffs’ failure to prosecute, this defendant might finally take a dismissal of the complaint, with costs. This, however, would not aid his asserted lien, and, at the present time, it, is not apparent that the discretion of the court should be exercised in his favor, so far as to give him costs in any amount, for he has not been called upon to do anything. The opposition to the motion is not reasonable and the application is accordingly granted, with $10.. costs.

Motion granted, with $10 costs.