Bockes v. Hathorn
New York Supreme Court
Appeal from an order denying a motion to vacate an order, granting extra allowances to the parties to the above entitled actions. The first action was brought to foreclose a mortgage, held by the plaintiff and others as trustees. After its commencement the second action was commenced by one of the other trustees to foreclose the same mortgage, and for certain other relief. To this second action the first plaintiff was made defendant.
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Appeal from an order denying a motion to vacate an order, granting extra allowances to the parties to the above entitled actions. The first action was brought to foreclose a mortgage, held by the plaintiff and others as trustees. After its commencement the second action was commenced by one of the other trustees to foreclose the same mortgage, and for certain other relief. To this second action the first plaintiff was made defendant. Both of these actions were referred, after issue joined, to the same referee, and were tried together. The referee reported in favor of the foreclosure, and on…
1Opinion of the Court
LEARNED, P. J.:
The learned justice who granted the order now appealed from, in a carefully considered opinion, came to the conclusion that, as these allowances were made by the consent of parties, it was not proper for the Special Term to set aside the order. In regard, however, to Kilmer and Deuel he held that the motion was a waiver, and, therefore, the order might be modified as to them.
Much of the difficulty which has arisen in these cases has come from the improper practice of bringing a second action of foreclosure, while one was pending. The main questions involved grew out of the…
2Cases cited1 opinion
- Hunt v. . ChapmanNew York Court of Appeals · 1875