Batterman v. Albright
New York Supreme Court
This is an appeal from a judgment entered in this court' upon the report of a referee dismissing the plaintiff’s complaint with costs. The action was brought to recover three thousand dollars for nursery trees, alleged in the complaint to be the property of the plaintiff, which were in the possession of the defendant, and which had been demanded of the defendant by plaintiff, with which demand the defendant refused to comply.
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This is an appeal from a judgment entered in this court' upon the report of a referee dismissing the plaintiff’s complaint with costs. The action was brought to recover three thousand dollars for nursery trees, alleged in the complaint to be the property of the plaintiff, which were in the possession of the defendant, and which had been demanded of the defendant by plaintiff, with which demand the defendant refused to comply. The action was tried before a referee, who reported in favor of the defendant, upon which report a judgment was entered in favor of defendant, dismissing the plaintiff’s…
1Opinion of the CourtMayham, J.
The appellant insists that the foreclosure of the mortgage was void for the reason that the plaintiff was not the sole owner of the mortgage at the time of the foreclosure.
We think Mis position cannot be maintained in this action. The court had jurisdiction of the subject matter of the action and acquired jurisdiction of the parties, the mortgagor and wife, by the service of process. If Mary M. Markle was a proper party, the objection should have been taken by demurrer or answer. Code Civil of Procedure, §§ 498, 499.
The power to foreclose and sell may be exercised by one *337owning only a part of…
2Cases cited10 opinions
- Voorhees v. . McGinnisNew York Court of Appeals · 1872
- Rector of Christ Protestant Episcopal Church v. MacKNew York Court of Appeals · 1883
- Murdock v. . GiffordNew York Court of Appeals · 1858
- Davidson v. . Westchester Gas-Light Co.New York Court of Appeals · 1885
- Sherman v. . WillettNew York Court of Appeals · 1870
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