McMurray v. . McMurray
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the third judicial department affirming a judgment in favor of plaintiffs, entered upon a decision of the court at Special Term. This action was brought to set aside a judgment of foreclosure and sale, and the sale thereunder, and for an accounting by defendant, as mortgagee in possession. The facts are sufficiently stated in the opinion.
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Appeal from judgment of the General Term of the Supreme Court in the third judicial department affirming a judgment in favor of plaintiffs, entered upon a decision of the court at Special Term. This action was brought to set aside a judgment of foreclosure and sale, and the sale thereunder, and for an accounting by defendant, as mortgagee in possession. The facts are sufficiently stated in the opinion. The omission to appoint a guardian ad Utem did not render the judgment void. (Rutter v. Puckhoffer, 9 Bosw., 638; Boleyn v. McEvoy, 29 How. Pr., 278; Croghan v. Livingston, 17 N. Y., 221;…
1Opinion of the CourtRaparlo, J.
It is conceded that at the time of the entry of the decree of foreclosure against the plaintiffs, and at the time of the sale of the mortgaged premises, the plaintiffs were infants, and that no guardian ad Utem had been appointed for them in the action. The judgment was entered by default. They had, however, been served with process and the judgment entered against them, though voidable was not absolutely void. (Bloom v. Burdick, 1 Hill, 130, 143; Barber v. Graves, 18 Vt., 290; Austin v. Trustees, etc., 8 Met., 196; White v. Albertson, 3 Dev. [N. C.], 241; Croghan v. Livingston, 17 N. Y.,…
2Cases cited3 opinions
- Croghan v. . LivingstonNew York Court of Appeals · 1858
- Wright v. . MillerNew York Court of Appeals · 1853
- Barber v. GravesSupreme Court of Vermont · 1846
3Cited by35 opinions
- In Re the Several Accountings of the Executors of TildenNew York Court of Appeals · 1885
- Warren v. . Union Bank of RochesterNew York Court of Appeals · 1898
- Crouter v. . CrouterNew York Court of Appeals · 1892
- Walkenhorst v. LewisSupreme Court of Kansas · 1880
- Parker v. StarrNebraska Supreme Court · 1887
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