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Moritz v. Kaliske.

Motion to continue an injunction.

Action in aid of an attachment by Henry Moritz against Joseph Sachs Kaliske, Theodore Kaliske and others.

The complaint alleged in substance, that plaintiff had commenced an action on September 21, 1893, against the defendant, Joseph S. Kaliske, upon his note for $5,262.50, in which an attachment had been granted (upon the ground that defendant had assigned and disposed of his property with intent to defraud his creditors), and levied upon the interest of Joseph S. Kaliske in certain dongola kid skins or their proceeds in possession of the sheriff under executions issued against the defendants, Theodore Kaliske and Charles S. Kaliske; that on or about Aug. 7, 1893, prior to the commencement of the action upon the note, under a conspiracy and with intent to defraud creditors, Joseph S. Kaliske transferred, and Theodore Kaliske and Chas. S. Kaliske received the dongola skins; that on Aug. 31, 1893, the defendant, William Vogel, obtained a judgment by confession against Theo. Kaliske and Chas. S. Kaliske for $4,576.61, and on August 31, 1893, the defendants, Sara S. Kaliske, Fabian S. Kaliske and Theodore Kaliske, as executor of Alexander S. Kaliske, deceased, also obtained a judgment by confession against Theodore and Chas. S. Kaliske for $7,110.51; that under executions upon such judgments the defendant, John J. Gorman, as sheriff, had seized and sold the dongola skins so fraudulently transferred, and was about to pay over the proceeds to the judgment creditors; and that Joseph S. Kaliske was wholly insolvent and had no other property which might be. attached.

Upon the complaint and affidavits in support thereof, the ex parte injunction, which is sought to be continued,

Moritz v. Kaliske.

was granted, enjoining the defendants from paying over, assigning or transferring the proceeds of the dongola skins.

H. M. Requa, Jr., for the motion.

Jared F. Harrison, opposed.

PATTERSON, J.-In People ex rel. Cauffman v. Van Buren (136 N. Y. 252) the Court of Appeals has settled in the affirmative the theretofore much debated and very doubtful question of the right of an attaching creditor to maintain a suit in aid of his attachment and to enforce the lien thereof, where the debtor has fraudulently disposed of property. It is also held, that in such a suit a plaintiff is not a mere creditor at large, but has a lien, and may enjoin the removal of property of the debtor from the jurisdiction of the court when danger of such removal is shown. The averments of the complaint in this action bring it directly within the principle of the decision referred to, and on an examination of the affidavits submitted on this motion, I think sufficient is disclosed to require the continuance of the injunction pendente lite, and until a full and thorough investigation of the whole case may be had upon the trial.

On the plaintiff giving an undertaking in an amount to be fixed on the settlement of the form of the order, the injunction will be continued until the hearing and decision of the cause.

U. S. Trust Co. of N. Y. v. Schliep.

UNITED STATES TRUST CO OF N. Y. v. SCHLIEP.

N. Y. Supreme Court, Second District, Special Term; November, 1893.

Amendment; judgment.] After sale under foreclosure, the judgment cannot be amended by inserting a provision for the payment of the deficiency, although the complaint demanded judgment therefor, and defendant had appeared and waived service of all papers except notices of sale and surplus, and made default in pleading.

Motion to amend a judgment of foreclosure and sale.

Action by United States Trust Company of New York as substitute trustee, etc., against Louis C. Schliep and others.

This action was for the foreclosure of a mortgage made by the defendant, Schliep, upon premises in Brooklyn. The complaint, which demanded that he be adjudged to pay any deficiency which might remain, was duly served on him; he appeared by his attorney, Chas. Coleman Miller, and waived service of all papers except notices of sale and surplus, and thereafter made default in pleading. Judgment of foreclosure and sale herein was entered on September 26, 1892, and through a clerical error, provided for no judgment of deficiency against said defendant.. Under such judgment the premises were sold by the sheriff on October 26, 1893, and bought in by the plaintiff for $11,250. The deficiency arising on such sale amounted to $435-34.

This motion is made to have the judgment amended by inserting therein a provision that the defendant, Schliep, pay any deficiency which may remain.

Edward W. Sheldon, for the motion. I. The relief sought for is within the power of the court to grant and

U. S. Trust Co. of N. Y. v. Schliep.

has been allowed before in similar cases (Citing Code Civ. Pro. § 783; Sprague v. Jones, 9 Paige, 395; Produce Bank v. Morton, 67 N. Y. 199; Wood v. Martin, 66 Barb. 241; N. Y. Ice Co. v. Northwestern Ice Co., 21 How. Pr. 296).

II. A judgment of foreclosure and sale is necessarily interlocutory in character. The amendment sought by this motion would not, in ordinary chancery practice as followed in the Federal and many State courts, be needed, since the order granting a judgment of deficiency is customarily entered only after the amount of the deficiency is ascertained on the filing of the master's or sheriff's report. Under the practice in New York, the direction for a deficiency in the foreclosure judgment is purely contingent, and its omission does not prevent the court from making a proper order as soon as the essential facts are acquired.

III. The amendment sought for in this action is in furtherance of justice. The defendant Schliep was duly served with the summons and complaint; the complaint so served demanded a judgment of deficiency against him; he appeared herein by attorney and waived service of all papers except notice of sale and as to surplus money; he made default in pleading and the judgment with notice of entry was never served on him, although the notice of sale was.

Chas. Coleman Miller, opposed. I. By entering judgment against defendant without decree of deficiency, plaintiff discharged him from personal liability (Citing Mutual Life Ins. Co. v. Hoyt, 15 Weekly Dig. 489).

II. Plaintiff's motion is made too late; it should have been made before sale (Citing Fleishhauer v. Doellner, 9 Abb. N. C. 372).

III. Courts can allow amendments only "in furtherance of justice" (Code Civ. Pro. § 723). To grant an application of this kind would be unjust and inequitable.

Keegan v. Sage.

The defendant's position is changed to his prejudice by reason of plaintiff's error, and an amendment should not be allowed to the injury of the defendant. A defendant has a right to rely on the judgment of foreclosure and sale as finally determining the issues and liabilities and rights of parties. If such judgment fails to provide for the payment by a defendant of a deficiency, he has no further concern in the matter, and is not interested in having the property sold to the best advantage or in buying it in himself to save a deficiency judgment.

CULLEN, J.-I do not think this application should be granted after sale.

Motion denied.

KEEGAN v. SAGE.

N. Y. Common Pleas, Special Term; September, 1893.

Pleading; motion to strike out.] Where a complaint for breach of promise to marry alleges plaintiff's chastity, a paragraph in the answer denying such allegation, and affirmatively asserting plaintiff's profligacy, and that in consequence she had been repeatedly committed by police magistrates, and had sought to mask her identity under aliases, cannot be stricken out as irrelevant, redundant and scandalous; since defendant was entitled to traverse the allegations of the complaint, and the allegations as to plaintiff's misconduct were in substance relevant in mitigation of damages, though they had not been properly pleaded in form as a partial defense.

* It is the better opinion that the effect of the provision of § 508 of the Code of Civil Procedure allowing partial defenses to be pleaded, if expressly stated to be partial, is simply to abrogate the common law rule that a partial defense raised no issue, but required defendant to submit to an assessment of damages before a sheriff's

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