Cooper Co. v. Wolf

¶1— While the discontinuance of the foreclosure suit after entry of final judgment may not always obviate applying for leave under Code of Civil Procedure, section 1628, to bring an after-suit, these appellants are not in a position to raise that objection. Bernard Naumburg assented to the discontinuance, which also could not have aggrieved the appellant Elsa H. Naumburg, as she was not a party to the foreclosure, the summons not having been served upon her, and, therefore, she is not put to the expense of a double litigation. The judgment is, therefore, affirmed, with costs. Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred; Blaekmar, J., concurred in result.