The action in the Marine Court, upon the defendant's guaranty of payment of the mortgage, was brought after judgment of foreclosure and sale had been rendered in an action to foreclose the mortgage, and without the plaintiff having previously obtained the authority of the court. The case was within the provision of the Revised Statutes, that after bill filed to foreclose a mortgage, no proceeding whatever shall be had at law for the recovery of the debt secured by the mortgage, unless authorized by the court. The action, in the absence of such authority, could not be maintained. (2 R.S. 191, §§ 153, 154;Scofield v. Doscher, 72 N.Y. 491.)
But we are of opinion that the court, by an order made nunc *Page 107 pro tunc, made after the action was commenced, could remove the impediment to maintaining the action founded upon the statute. The statute was passed to prevent vexatious and oppressive litigation — and application for leave to sue at law, after proceedings in foreclosure have been commenced, may be refused, in the just and reasonable discretion of the court. Where leave to sue in such a case is given, the cause of action is the contract or obligation of the party. The permission of the court simply removes an obstruction against the enforcement by suit. If the action has been commenced without previous authority, the fact may be pleaded, and the plea would be in the nature of a plea in abatement to the action. If the plaintiff is defeated upon this ground, he may afterward apply to the court for leave to sue, and if granted, he may commence a new action for the same cause. If the plaintiff has commenced his action without leave, there would seem to be no valid reason why the court, instead of putting the plaintiff to the necessity of discontinuing, may not, in a proper case, manifest its consent to the prosecution of the action, by a retroactive order, to take effect as of a time anterior to its commencement. The defendant is thereby deprived of no substantial defense. The court, in granting the order, may impose such terms as shall be just.
The order made in this case was clearly in furtherance of justice. The defendant was the plaintiff's agent in conducting the foreclosure. He directed the attorneys employed by him not to make him a party, and he was not made a party for that reason. The cause of action on the guaranty was not barred by the judgment in the foreclosure action, and the order allowing the action to proceed was properly granted.
The order should be affirmed.
All concur, except RAPALLO, J., absent.
Order affirmed. *Page 108