¶1I concur in the result. The consent of Mary J. Stockton to the payment, on account of the second mortgage, of the surplus realized on the foreclosure sale of the first mortgage cannot be regarded as an estoppel or such an act as would cure the defect of parties in the foreclosure suit on the first mortgage. Upon the other question, concerning the misnomer of the defendant Stockton, I concur in the result only in consequence of the force of authority in this State on that subject. (Farnham v. Hildreth, 32 Barb. 277 ; Moulton v. de ma Carty, 6 Robt. 470 ; Griswold v. Sedgwick, 6 Cow. 456.) Were it an original proposition I should incline to another view. The rule in this State seems to be in conflict with that generally recognized in other jurisdictions. (1 Black Judg. § 213, and cases cited; Freem. Judg. [2d ed.] § 154, and cases cited.) We must, however, follow the law as laid down by our courts. As the defendant Stockton did not appear in the foreclosure suit, and the amendment of the summons and complaint was made without notice to her, and no amended process was ever served upon her, the defect was not cured by the order of amendment.
41 A.D. 551
Stuyvesant v. Weil
Appellate Division of the Supreme Court of the State of New York
Decided June 15, 1899
Appellate Division of the Supreme Court of the State of New York · decided 1899-06-15
Appeal by the plaintiff, Augustus Van Horne Stuyvesant, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 14th day of March, 1899, upon the decision of the court rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.
Cited by 1 later decisions — most recently November 1899
1 state decisions
Relies on Farnham v. Hildreth · Griswold v. Sedgwick
Good law ✅— No negative treatment on recordhow we know
Decided 1899-06-15
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