(dissenting).
When this action was commenced the plaintiff had not obtained leave of the court to sue, which was essential for the maintenance of his action.
I understand this rule to have been absolutely declared in the case of Scofield v. Doscher (72 N. Y., 491), referred to in the opinion of Barrett, J., and in which the court say :
*530“ But here, when he has shown, that this action is for a deficiency upon a foreclosure of a mortgage and sale of the lands, he shows at the same instant that he must have authority from the court to bring his action, and unless he has that he has no present right of action at all.”
The court cannot confer upon an amendment such retroactive power as to create a right of action, and cannot legalize therefore in that way an action which had no legal vitality at the time of its inception.
Judgment affirmed, with costs.