Bergen v. . Urbahn, Etc.
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 13,1879, which affirmed a judgment in favor of defendants, entered upon a decision of the court entered at . Special Term. This was an action to foreclose a mortgage. The material facts appear in the opinion. The mortgage is equally good with or without a bond, and plaintiff is entitled to a decree of foreclosure, whether a bond exists Or not.
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Appeal from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 13,1879, which affirmed a judgment in favor of defendants, entered upon a decision of the court entered at . Special Term. This was an action to foreclose a mortgage. The material facts appear in the opinion. The mortgage is equally good with or without a bond, and plaintiff is entitled to a decree of foreclosure, whether a bond exists Or not. ( Goodhue v. Berrien, 2 Sandf. Ch. 630.) The bond being absent, the mortgage will be presumed to have been paid. (Bauder v.…
1Opinion of the CourtDanforth, J.
Whether we take the pleadings as they are set forth in the record, or as they would have been if actually amended in pursuance of the order of the trial judge, can make no difference with the result. In either case the plaintiff failed to make out a cause of action. The complaint sets out a bond and mortgage, and alleges default in the payment of the sum secured thereby. The court allowed the plaintiff to amend that pleading “ by striking out all the allegations ato a bond and setting forth the mortgage produced in evidence; whereupon,” as the case states, “ defendants, by leave of the court,…
2Cases cited4 opinions
- Merritt v. . BartholickNew York Court of Appeals · 1867
- Langdon v. BuelNew York Supreme Court · 1832
- Jackson ex dem. Norton v. WillardNew York Supreme Court · 1809
- Voorhees v. . BurchardNew York Court of Appeals · 1873
3Cited by26 opinions
- Munoz v. . WilsonNew York Court of Appeals · 1888
- Matter of PirieNew York Court of Appeals · 1910
- Sullivan v. Corn Exchange BankAppellate Division of the Supreme Court of the State of New York · 1912
- Livermore v. MaxwellSupreme Court of Iowa · 1893
- Lenfesty v. CoeSupreme Court of Florida · 1894
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