Pickersgill v. Read

Barnard, J.: The plaintiff in this action sought to foreclose a mortgage given to him as committee, by his so.i J >1 n A. Piekersgill. In his complaint he made the New York hospital a party, averring the hospital had a claim subsequent to the mortgage. The mortgage covered certain lands owned by the defendant Read, which he claimed had been released from the operations of the same. The hospital by its answer claimed an assignment of so much of the proceeds of the sale, as would be sufficient to pay its claim against the plaintiff’ as committee. No copy of the answer of the' hospital was served on Read’s attorney. The issue was tried and the plaintiff obtained a decree enforcing the mortgage against the property of Read. [639] The referee was directed, out of the proceeds of the sale, to pay the hospital its claim. The defendant Read appealed to the General Term of this court, and served his notice of appeal on the plaintiff’s attorney, and after argument the judgment was reversed upon the ground that Read’s property was released from the lien of the mortgage, and a new trial was granted. The hospital was not an adverse party under section 237 of the Code. The plaintiff retained the legal title to the mortgage. (Poor v. Guilford, 10 N. Y., 273.) It is too late for the hospital to question this fact. If the hospital had an interest in the claim, it should have been made a co-plaintiff If it refused to be a joint plaintiff, then on an averment of that fact it could have been made a defendant. In such case the joint interest should have been stated and the refusal to join also. There are no such averments. The hospital permits the plaintiff to assert his title to the whole mortgage, and only asks that such a portion of the proceeds of the sale be paid to it, as will pay its claim. If the plaintiff fails to establish his right to a sale, the defendant’s, the New York hospital’s, claim to the proceeds of the sale, is inoperative and impossible of execution. As to the validity of the mortgage, the only adverse parties under this issue were the plaintiff and Read. The New York hospital would have been bound by an adjudication that the mortgage was of no effect, made in an action between the plaintiff and Read, in which the hospital was not a party. It took nothing by its assignment, if plaintiff had no interest to convey, and a decree against the plaintiff would bind all who claim under the plaintiff. The notice of the entry of the judgment given by one of the attorneys for the New York hospital, is insufficient to limit Read’s right to appeal. It purports to have been prepared to be signed ’ by the plaintiff’s attorney and by the attorney for the New York hospital. It recites a judgment entered in favor of the plaintiff and the New York hospital. It is not signed by the plaintiff’s attorney, and by only one of the defendant’s attorneys. If he had been substituted, no notice was given either plaintiff or Read. Papers which are to have the effect to limit the right of appeal must be strictly construed. The hospital waived the defect, if there [640] was any. The case shows that the plaintiff’s attorneys and the attorneys for the hospital acted together. Notice of appeal was duly served on plaintiff’s attorney in due time. Notice of appeal served on the hospital had been returned. After this return the defendant Reed applied to the court at Special Term to fix the amount of security on appeal. The plaintiff’s attorney, by a Mr. Jackson, wished Mr. Mathews, one of defendant’s (hospital’s) attorneys to be present, and lie was sick. Read consented to the postponement, upon the condition and stipulation in writing, that the hearing should stand over “without prejudice, and shall not be prejudiced by the fact that the notice of appeal was served prior to the hearing and determination thereof.” To this stipulation Jackson signed the name of A. Mathews, attorney for New York hospital, and the names of the plaintiff’s attorney. Mathews availed himself of the benefit of the stipulation, appeared and argued the motion. I think that Mathews’ name was signed by his authority, as against the defendant Reed ; thé case shows that Mathews and the plaintiff’s attorneys acted for each other. Mathews argued for plaintiff’s attorneys, and they postponed for Mathews. Finally, the defect, if any, was waived by the appearance and argument by the attorney for the New York hospital on the merits at the General Term. The New York hospital submitted an elaborate argument on the merits. This waiver was not weakened by an insertion of a clause in the argument by the counsel for the New York hospital, that he denied the service of the notice of appeal on the hospital. Read knew nothing of this; it was not mentioned on the argument. The court knew nothing of it until the argument was subsequently examined. No motion was made by the hospital to dismiss the appeal. Motion denied, with ten dollars costs. Dtkman, J., concurred. Present — Barnard, P. J., Gilbert and Dtkman, JJ. Motion to modify order of General Term denied, with costs and disbursements.