Cooper Co. v. Naumburg

Rich, J.: This appeal is .by the defendant Elsa H. Naumburg from an order of. the County Court of Kings county which denied her [226] motion to vacate and set aside an ex parte order granting plaintiff leave to bring an action against her upon a bond given as collateral to a mortgage. The mortgage had been foreclosed before the order was granted, and although the appellant was made a party defendant she was not served with the summons and did not appear in the action. It appears that after sale in the foreclosure action (in which there was a deficiency), an order was entered upon appellant’s motion setting aside the judgment of foreclosure so far as she was concerned and restraining plaintiff from entering a deficiency judgment. Subsequently the ex parte order granting leave to sue was granted. The motion to vacate that order was upon the sole ground that the application for leave to sue was granted without notice. It was held in Darmstadt v. Manson (144 App. Div. 249) that section 1628 of the Code of Civil Procedure confers no absolute right to sue the:'person liable for the mortgage debt after judgment of foreclosure and sale has been entered, and the right to do so should be granted only when satisfactory reasons are shown for not enforcing the personal liability in the foreclosure action. (See Equitable Life Ins. Society v. Stevens, 68 N. Y. 341.) The proposed defendant had a right to be heard upon the application, and the ex parte order cannot be sustained. (United States Life Ins. Co. v. Poillon, 53 Hun, 636; 6 N. Y. Supp. 370; Walton v. Grand Belt Copper Co., 57 Hun, 588; 11 N. Y. Supp. 110; Matter of Marshall, 53 App. Div. 136; Matter of Byrne, 81 id. 74; Morrison v. Slater, 128 id. 467.) It follows that the order must be reversed, with ten dollars costs and disbursements, and the motion granted, with costs. Jerks, P. J., Thomas, Carr and Woodward, JJ., concurred. Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, and motion granted, with costs. ’ . .