General

William P. Earle, Respondent, v. Caroline F. David, Appellant

86 N.Y. 634·New York Court of Appeals·1881·NY

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Opinion

William P. Earle, Respondent, v. Caroline F. David, Appellant. (Submitted October 14, 1881; decided October 25, 1881.) This was an action to recover for a deficiency arising on foreclosure sale. It was commenced without obtaining permission of the court as required. (2 R. S. 191, §§ 153 et seq.; Scofield v. Doscher, 12 N. Y. 491.) Defendant demurred to the complaint; the demurrer was sustained, but 'thereafter the court, upon plaintiff’s application, gave him permission to amend, and to bring and continue the action, “ without prejudice to the proceedings already had.” The complaint was thereupon amended, and upon a second demurrer held sufficient. It was claimed by defendant that the court had no power, after the commencement of the action, to give leave and permit the action to continue. Meld untenable; the court citing McKernam, v. Robinson (84 N. Y. 105). Walter S. Logan, for appellant. John M. Martin for respondent. [MAJORITY — Danforth, J.,] Danforth, J., reads for affirmance. All concur, except Milleb, J., absent. Judgment affirmed.