Legal Opinion

Mutual Life Insurance v. Truchtnicht

New York Supreme Court

Decided December 15, 1877PublishedCited by 2 opinions

Motion, to confirm a referee’s report. This action was brought by The Mutual Life Insurance Company, against John Truchtnicht and others, to foreclose three certain mortgages, dated respectively January 20, 1865, January 31, 1868, and May 31, 1871, on certain real estate in Mott Haven. ' A judgment of foreclosure and sale was obtained, and the property sold.

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Motion, to confirm a referee’s report. This action was brought by The Mutual Life Insurance Company, against John Truchtnicht and others, to foreclose three certain mortgages, dated respectively January 20, 1865, January 31, 1868, and May 31, 1871, on certain real estate in Mott Haven. ' A judgment of foreclosure and sale was obtained, and the property sold. Upon the sale there was a surplus amounting to $2,561.17. The plaintiff held other mortgages upon the same, and other premises, made intermediate the first and last mortgages, upon which this suit was brought. These mortgages were not…

1Opinion of the CourtBarrett, J.

The object of the surplus money rule was to save the plaintiff from the necessity of establishing beforehand all the claims he might have upon the mortgaged premises (Field v. Hawxhurst, 9 How. Pr. 77). Under this rule it has been a common practice for the plaintiff to apply for the surplus money under a subsequent incumbrance not referred to in his com*138plaint. The surplus money stands in the place of the land in respect to those having liens or vested rights therein (Matthews v. Duryee, 45 Barb. 70). The rule as to a subsequent mortgagee without notice of snit is not technical. It is founded…

2Cases cited4 opinions

  1. Waller v. HarrisNew York Court of Chancery · 1838
  2. Winslow v. McCallNew York Supreme Court · 1860
  3. Field v. HawxhurstNew York Supreme Court · 1853
  4. Root v. WheelerNew York Supreme Court · 1861

3Cited by2 opinions

  1. N. Y. Life Insurance v. MayerNew York Court of Common Pleas · 1887
  2. New York Life Insurance v. MayerNew York Court of Common Pleas · 1887

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