Frank v. . Davis
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the first judicial department, made November 14, 1891, which affirmed an order of Special Term granting an application by plaintiff for leave to enter a deficiency judgment. This action was brought to foreclose a mortgage and the ordinary judgment of foreclosure and sale was given, containing the usual provision for a deficiency judgment and execution thereon.
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Appeal from order of the General Term of the Supreme Court in the first judicial department, made November 14, 1891, which affirmed an order of Special Term granting an application by plaintiff for leave to enter a deficiency judgment. This action was brought to foreclose a mortgage and the ordinary judgment of foreclosure and sale was given, containing the usual provision for a deficiency judgment and execution thereon. The defendant appealed from the judgment to the General Term and to this court, and the judgment was here affirmed. (127 N. Y. 673.) During the pendency of the appeals…
1Opinion of the Court
Earl, Oh. J.
The judge at Special Term granted plaintiff’s motion upon the authority of the case of Stewert v. Hamel (33 Hun, 44). The General Term disapproved of the decision in that case, and held that the jurisdiction of an equity court to enter a deficiency judgment in an action to foreclose a mortgage is strictly statutory, and that such a judgment can be entered only after a sale under the foreclosure judgment and a deficiency thus resulting and ascertained.
In England, and in this state prior to the Revised Statutes, the Court of Chancery, in an action to foreclose a mortgage, was not…
2Cases cited10 opinions
- Lynch v. Metropolitan Elevated Railway Co.New York Court of Appeals · 1891
- Dunning v. . Ocean National BankNew York Court of Appeals · 1875
- Equitable Life Insurance Society of United States v. StevensNew York Court of Appeals · 1875
- Dunkley v. Van BurenNew York Court of Chancery · 1818
- McGean v. Metropolitan Elevated Railway Co.New York Court of Appeals · 1892
5 more not listed; retrieve them via the Exa API.
3Cited by36 opinions
- Cragin v. Ocean & Lake Realty Co.Supreme Court of Florida · 1931
- Jamaica Savings Bank v. M. S. Investing Co.New York Court of Appeals · 1937
- Young v. VailNew Mexico Supreme Court · 1924
- Weisel v. Hagdahl Realty Co.Appellate Division of the Supreme Court of the State of New York · 1934
- Burrows v. PaulsonNorth Dakota Supreme Court · 1934
31 more not listed; retrieve them via the Exa API.