Kirby v. . Fitzgerald
New York Court of Appeals
This is an appeal by the Delaware and Hudson Canal Company from an order of the Supreme Court, directing the payment to the plaintiff Kirby, and others, of certain surplus moneys arising upon the foreclosure of a mortgage under the statute. The mortgage was given by one Patrick McEntee to Fitzgerald, in 1853, upon property owned by McEntee; and, upon a sale of a parcel of the property under the mortgage, the surplus in dispute arose.
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This is an appeal by the Delaware and Hudson Canal Company from an order of the Supreme Court, directing the payment to the plaintiff Kirby, and others, of certain surplus moneys arising upon the foreclosure of a mortgage under the statute. The mortgage was given by one Patrick McEntee to Fitzgerald, in 1853, upon property owned by McEntee; and, upon a sale of a parcel of the property under the mortgage, the surplus in dispute arose. It was claimed by Kirby & Co and the canal company, who were creditors of McEntee. After the sale, both of these parties claiming the surplus, suits to recover…
1Opinion of the Court
The proceeding in the Supreme Court was anomalous in its form. There were two suits depending against Fitzgerald, who, it is conceded, had in his hands $625, which were surplus moneys arising upon the sale under a statute foreclosure, of certain premises which Patrick McEntee had mortgaged to him. The plaintiffs in these two actions claimed to be subsequent judgment creditors having liens upon the equity of redemption. The judgment which the Delaware and Hudson Canal Company held, as assignee, was the earliest in time; but Kirby and others, the plaintiffs in the first above mentioned suit,…
2Cases cited1 opinion
- Kirby v. . FitzpatrickNew York Court of Appeals · 1859
3Cited by5 opinions
- The Union Bank v. . BushNew York Court of Appeals · 1867
- Douglass v. ChisholmNew York Supreme Court · 1931
- Knapp v. ThomasOhio Supreme Court · 1883
- Mathews v. DuryeeNew York Court of Appeals · 1868
- Matthews v. DuryeeNew York Court of Appeals · 1868