Parfitt v. Warner

Decided September 15, 1861

New York Supreme Court · decided 1861-09-15

This was an action for the foreclosure of a mortgage of $1,500. The plaintiff procured a judgment for foreclosure, and the sale of the premises, and advertised a sale. The defendant Warner appealed from the judgment, and procured from a judge of the court' an order fixing the sum to be secured on appeal, for the value of the use and occupation of the premises, as prescribed in section 338 of the Code, at seven hundred dollars.

Decided 1861-09-15

Br the Court.*— Ingraham, J.

¶1—The undertaking was not void, and might be sufficient for all purposes under the Code, though not in exact compliance with the statute.

¶2In such a case, the proper course was to move to set it aside, and to allow the plaintiff to proceed and sell, or to give notice of the defect in the undertaking.

¶3 *473To warrant the course taken in this case, without notice of any kind, would be doing injustice to the parties, and encouraging a course of proceeding which ought not be approved, of.

¶4The order should be reversed, and the sale vacated and discharged, without prejudice to a motion of the plaintiff to set aside the undertaking.

¶5 Present, Clerke, P. J., Ingraham and Leonard, JJ.