Bache v. Doscher
The Superior Court of New York City
Exceptions heard in first instance at general term. Complaint dismissed. The complaint averred that plaintiff was assignee of a bond made by one Goebel, secured by mortgage upon real estate, that Goebel conveyed the real estate to Hardin, the defendant’s testator, and Hardin covenanted to pay the sum of money secured by said bond and mortgage ; that after his death, plaintiff proceeded "to foreclose the mortgage ; that defendant, as executor oí will, &c., of Hardin, was made…
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Exceptions heard in first instance at general term. Complaint dismissed. The complaint averred that plaintiff was assignee of a bond made by one Goebel, secured by mortgage upon real estate, that Goebel conveyed the real estate to Hardin, the defendant’s testator, and Hardin covenanted to pay the sum of money secured by said bond and mortgage ; that after his death, plaintiff proceeded "to foreclose the mortgage ; that defendant, as executor oí will, &c., of Hardin, was made a party to the action ; that judgment was given of foreclosure, “ and that if the proceeds of the sale should be…
1Opinion of the Court
By the Court.-—Sedgwick, J.
On the argument, the respondent’s counsel argued that the complaint was properly dismissed, because it did not appear, that leave had been obtained to bring this action, and by section 153 of the Revised Statutes, vol. 2, p. 191, after a bill is filed for the foreclosure of a mortgage, “ no proceedings whatever shall be had at law, for the recovery of the debt secured by the mortgage or any part thereof, unless authorized by the court,” &c. It seems to me, best not to examine this question, because it is not specifically referred to in the pleadings, and was not…
2Cases cited5 opinions
- People Ex Rel. Day v. . BergenNew York Court of Appeals · 1873
- McCarthy v. GrahamNew York Court of Chancery · 1840
- Sprague v. GrahamNew York Court of Chancery · 1842
- Bank of Rochester v. EmersonNew York Court of Chancery · 1843
- Lewis v. RandallNew York County Court, Chenango County · 1866