Picabia v. Everard
New York Supreme Court
—The defendant, Delmonico, as administrator, &c., presented a petition setting forth that he was the owner, by assignment from the plaintiff, of the mortgage to foreclose which this suit had been brought; that in 1844 a decree had been entered in the suit by default, but it had not yet been enrolled; that the premises were liable to three prior mortgages, one to Bishop Hughes for $24,000, and two to John Targee for some $10,000; and that there was due on the mortgage in this…
Read the full summary
—The defendant, Delmonico, as administrator, &c., presented a petition setting forth that he was the owner, by assignment from the plaintiff, of the mortgage to foreclose which this suit had been brought; that in 1844 a decree had been entered in the suit by default, but it had not yet been enrolled; that the premises were liable to three prior mortgages, one to Bishop Hughes for $24,000, and two to John Targee for some $10,000; and that there was due on the mortgage in this suit about $14,000; that the premises would not sell for more than $40,000, which would not be sufficient to satisfy…
1Opinion of the Court
Edmonds, Justice.
A final decree, regularly obtained and enrolled, *114cannot be opened or altered in this court, but on a bill of review; and if not enrolled, but regularly obtained and entered on the minutes, it can be corrected only on a re-hearing, (Bennett v. Winter, 2 J. C. R. 205;) and in the latter case, the court will not, on motion, entertain an application to vary it, unless by consent of all parties, or in respect of matters which are quite of course, as in case of a clear mistake in the counsel’s drawing it up, (1 Paige, 189 ; 7 ib. 382,) or where some ordinary direction has been…
2Cases cited3 opinions
- Clark v. HallNew York Court of Chancery · 1839
- Murray v. BlatchfordCourt for the Trial of Impeachments and Correction of Errors · 1829
- Gardner v. DeringNew York Court of Chancery · 1833
3Cited by1 opinion
- Salisbury v. Binghamton Pub. Co.New York Supreme Court · 1895