Simonson v. Blake
New York Supreme Court
Appeals from an order vacating a judgment, and from an order of reference to ascertain the amount to he paid the judgment-creditor out of a fund in court. The defendant Blake was a party defendant in two actions of foreclosure.
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Appeals from an order vacating a judgment, and from an order of reference to ascertain the amount to he paid the judgment-creditor out of a fund in court. The defendant Blake was a party defendant in two actions of foreclosure. In the first of these actions, which was at the suit of Daniel Simonson, the complaint alleged that Blake had assumed the payment of the mortgage sought to be foreclosed; but the demand for relief asked for foreclosure and sale, but omitted to ask a judgment over against him for any deficiency on the sale; it, however, contained the usual general prayer for relief. The…
1Opinion of the Court
By the Court.*—Emott, J.
—The judgment against the defendant Blake was set aside at the special term, because it was entered upon a report of sale in an action in which no such judgment or relief was demanded in the complaint, and in which Blake had not appeared. Blake is not the mortgagor, but his grantee, and his liability is said to arise from the fact that he assumed the payment of this mortgage in his purchase. He denies, however, that the fact is so. The complaint in the foreclosure-suit alleges such to be the fact, but asks for no relief against Blake in consequence, other than the…
2Cited by11 opinions
- Fithian v. MonksSupreme Court of Missouri · 1869
- Mach v. BlanchardSouth Dakota Supreme Court · 1902
- Bank of California v. DyerWashington Supreme Court · 1896
- Mathot v. TriebelAppellate Division of the Supreme Court of the State of New York · 1905
- Parszyk v. MachSouth Dakota Supreme Court · 1898
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