
    Arthur H. Selinger, Plaintiff, v. The G. C. Inc., et al., Defendants.
    (Supreme Court,
    Kings Special Term, June, 1913.)
    Foreclosure — of mortgage — notice of application for judgment — waiver of notice.
    In an action to foreclose a mortgage defendants who have appeared and demanded service of all papers, but do not answer, are entitled to eight days’ notice of application for judgment; and where no such notice was given them nor any notice of trial served on them the judgment will not be signed unless plaintiff procures a waiver of such notice from such defendants.
    Action for the foreclosure of a mortgage.
    Samuel A. Telsey, for plaintiff.
    Matthew M. Ward, for defendant E. J. McLoughlin Company.
    Doherty & Coady, for defendant Cervadoro.
   Benedict, J.

The papers submitted in this matter are defective. In the first place no notice of application for judgment has been given, so far as appears, to those defendants who appeared and demanded service of all papers, but who did not answer. These defendants were entitled to eight days ’ notice of such application. Code Civ. Pro., § 1219, subd. 1; 1 Wiltsie Mortgage Foreclosure, 559. The usual practice, as I understand it, is to incorporate in the notice of trial a statement to the effect that at the same time and place an application will be made for judgment against those defendants who have not answered. This was not done in the case before me, nor was any notice of trial served on those who appeared but did not answer. If the plaintiff can procure a waiver of such notice from these defendants, I will sign the judgment. Otherwise I will merely sign the decision, determining that plaintiff is entitled to judgment against those defendants who answered and leaving him to make application at the Special Term for Motions for judgment against the other defendants. If waivers can be procured they may be submitted to me, together with a further affidavit, supplementing the affidavit of regularity, showing whether or not any defendant not mentioned in the affidavit of regularity as having appeared in the action has done so. The affidavit submitted alleges that certain defendants have appeared but does not show that no other defendant has appeared. The answer of the defendant E. J. McLoughlin Co. should be submitted.

Ordered accordingly.  