Mowry v. Sanborn
New York Supreme Court
Appeal from a judgment entered at the Circuit on the decision of the judge, without a jury, trial by jury having been waived by the parties in open court. This action was commenced March 16, 1871. The action was tried at a Circuit Court held in November, 1871, and a verdict was rendered for the plaintiffs. Judgment was perfected on this verdict, and an appeal was taken to the General Term where the judgment was affirmed.
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Appeal from a judgment entered at the Circuit on the decision of the judge, without a jury, trial by jury having been waived by the parties in open court. This action was commenced March 16, 1871. The action was tried at a Circuit Court held in November, 1871, and a verdict was rendered for the plaintiffs. Judgment was perfected on this verdict, and an appeal was taken to the General Term where the judgment was affirmed. From this judgment an appeal was taken to the Court of Appeals. The cause was transferred to tbe Commission of Appeals, which court reversed the judgment and ordered a new…
1Opinion of the Court
Bockes, J.:
When this case was in the Commission of Appeals, it was decided that the proof of foreclosure offered by the affidavit of publication, and of service of notice and of sale, recorded in the county clerk’s office, did not have the effect to divest the defendant of title. This decision must now be accepted as the law of this case, notwithstanding the very clear and logical dissenting opinion of Commissioner Earl. The decision was put on the ground that the affidavit of service of notice of foreclosure was fitally defective in this : that the service being by mail, it did not appear…
2Cases cited9 opinions
- Bunce v. ReedNew York Supreme Court · 1853
- Tuthill v. . TracyNew York Court of Appeals · 1865
- Arnot v. McClureNew York Supreme Court · 1847
- Cohoes Co. v. GossNew York Supreme Court · 1852
- Howard v. HatchNew York Supreme Court · 1859
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