O'Hara v. Brophy
New York Supreme Court
In May, 1860, an action for a strict foreclosure was brought by James Wood, in which action the plaintiff was joined as defendant. The plaintiff and his then co-partner, Peter McLaughlin, held a mortgage subsequent to the one in suit and upon the same premises. They were therefore made parties defendants, with the usual allegations that no personal claim is made against these defendants.
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In May, 1860, an action for a strict foreclosure was brought by James Wood, in which action the plaintiff was joined as defendant. The plaintiff and his then co-partner, Peter McLaughlin, held a mortgage subsequent to the one in suit and upon the same premises. They were therefore made parties defendants, with the usual allegations that no personal claim is made against these defendants. When the process was served upon Mr. O’Hara he took it to D. P. Barnard, Esq., of Brooklyn, for advice, and was then and there advised that no defence could be successfully interposed by him. He then took the…
1Opinion of the Court
By the court, Scrugham, Justice.
Actions for the strict foreclosure of mortgages are not among those mentioned in section 304 of the Code, in which costs are allowed of course, but their allowance or refusal in such actions is in the discretion of the court. (Code, § 306.)
The provision that a defendant upon whom the notice prescribed by section 131 is served, shall pay costs if he unreasonably defend the action, does not deprive the court of the power in equity cases to award costs for unreasonably defending against defendants upon whom a copy of the complaint, but no such notice, has been…
2Cited by3 opinions
- Kramer v. GerlachAppellate Terms of the Supreme Court of New York · 1899
- Nielsen v. Festina Realty Co.Appellate Division of the Supreme Court of the State of New York · 1937
- Pennell v. WilsonThe Superior Court of New York City · 1867