Case v. Mannis

Learned, P. J.

The order appealed from was right.

1. The affidavit shows what was the irregularity complained of, viz., the entry of a judgment for costs not warranted by the report of the referee. The preliminary objection was properly overruled.

2. The report of the referee who tried the case found “that plaintiff have his costs of this action.” As the action was one for foreclosure, this language simply meant that the plaintiff should recover costs in the manner *244usual in such actions, that is, from the avails of the sale. If the referee had intended that the plaintiff should recover costs personally against any defendant, he would have so stated. As to the merits,—that is, whether the referee ought to have allowed costs.against any defendant personally,—that question could only be examined on appeal from the judgment. As the report stood, the plaintiff was not. regular in entering costs personally against any one. And the entry was properly corrected by the court.

3. The special term could properly direct the order of sale in this case if it chose so to do. The direction made was equitable and just. The mortgage was on a lot of land. Subject to the mortgage a right of way over a strip of 10 feet wide belongs to Mannis. The title to that 10 feet, subject to the mortgage and subject to the right of way, is in Kate H. Traver, coming to her through the foreclosure of a second mortgage dated in 1876. The title to the rest of the lot, subject to the mortgage, is in John Case, coming to him through the foreclosure of a still later jnortgage dated in 1882, which, when foreclosed in 1885, did not cover the 10 feet. The owner of the right of way offered, in his moving affidavit, to bid enough on the sale to make the judgment and costs out of the land exclusive of the strip of 10 feet. The court ordered that the part of the land other than the strip of 10 feet be first sold. This is in accordance with the equitable rule. The right of way was conveyed by the owner of the land in 1883. The plaintiff, who appeals, is not injured by this direction to sell. It is not shown that the land sold thus in parcels will not bring as much as if sold as a whole. And the offer made by Mannis is a protection to the plaintiff. For, if on the sale Mannis should permit the piece first sold to bring less than the judgment and costs, the court could order a resale. But there is no real danger since Mannis is desirous to save his right of way. Ho one else appeals, but the plaintiff’s counsel urges that John Case should have had notice of this motion; He was a defendant in the action, and did not appear. If he desired to protect his interests, he should have appeared and presented his claim. We have no reason to assume that he is not satisfied with the direction given by the court. Furthermore, as the owner of the mortgage, under the foreclosure of which John Case obtained title, released this 10 feet, it would be inequitable to permit John Case, the owner of the residue, to get indirectly the benefit of the value of that 10 feet, by compelling the sale of the whole property in one parcel.- The order is affirmed, with $10 costs and printing disbursements. All concur.