Hauselt v. Fine
New York Supreme Court
I. April, 1886. Demurrer to complaint. The action is brought by Charles Hauselt, a judgment creditor of John H. McCann, deceased, against the heirs of the deceased and their grantee of a portion of the real estate descended to them, to subject the property to the payment of the judgment for a deficiency arising upon the foreclosure of a mortgage made by the deceased.
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I. April, 1886. Demurrer to complaint. The action is brought by Charles Hauselt, a judgment creditor of John H. McCann, deceased, against the heirs of the deceased and their grantee of a portion of the real estate descended to them, to subject the property to the payment of the judgment for a deficiency arising upon the foreclosure of a mortgage made by the deceased. The defendants demurred upon the ground that the facts stated were insufficient to constitute a cause of action, urging upon the argument the points considered on the decision of the demurrer to the amended complaint (below). II.…
1Opinion of the CourtVan Brunt, J.
This action is brought to recover from heirs and their grantee the amount of a deficiency arising upon the foreclosure of a mortgage made by the ancestor, and the complaint is demurred to upon the ground that it does not state facts sufficient to constitute a cause of action.
The objection to the complaint is made that it contains no allegation that the leave to sue required' to be obtained has been granted.
It has been repeatedly held that if the sale does not produce enough to satisfy the mortgage debt, if the mortgagee or other holder of a mortgage wishes to proceed at law upon any…
2Cases cited12 opinions
- Scofield v. . DoscherNew York Court of Appeals · 1878
- Hackley v. . DraperNew York Court of Appeals · 1875
- McKernan v. . RobinsonNew York Court of Appeals · 1881
- Krower v. . ReynoldsNew York Court of Appeals · 1885
- Church v. Van BurenNew York Supreme Court · 1877
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3Cited by2 opinions
- Goldstein v. MichelsonAppellate Terms of the Supreme Court of New York · 1904
- Herring v. N. Y. Lake ErieNew York Court of Appeals · 1887