
    Hannah A. Durham, Respondent, v. Lovisa H. Chapin, Appellant.
    
      Foreclosure action — failure of the plaintiff to demand judgment for a deficiency — order granting him leave to sue nunc pro tunc without formal notice thereof.
    
    In an action brought for the foreclosure of a’bond and mortgage no judgment for deficiency was asked for, and a deficiency having arisen on the sale, the plaintiff, without obtaining leave under section 1628 of the Code of Civil Procedure, brought an action against a grantee of the premises, who had assumed payment of the mortgage, for such deficiency. In this action a demurrer was interposed, upon the argument of which, without giving any previous notice of motion to the defendant to that effect, the plaintiff asked leave to sue the defendant nunc pro tuna as of the day of the commencement of the action; the court sustained the demurrer but granted the application for leave to sue nunc pro tunc.
    
    On an appeal from the order granting such application the Appellate Division, upon the suggestion of the defendant that if she had been notified of the intent-to charge her with the deficiency upon the mortgage sale, the property would have sold for a larger price, considered that the order granting leave to sue nunc pro tuna should be reversed, without prejudice tó a renewal of the motion
    Appeal by the defendant, Lovisa H. Chapin, fi-oin so much of an order of the Supreme Court, made at the Washington Special-Term and entered in the office of the clerk of the county of Washington on the 28-th day of January, 1898, as permits the plaintiff to bring the action ovunc pro tunc.
    
    
      F. B. Gill, for the appellant.
    
      J. Sanford Potter, for the respondent.
   Per Curiam :

The defendant was a party to an action' of foreclosure and sale, and after the sale judgment was entered against her for the deficiency. The judgment against her was set aside for the reason that no complaint asking judgment for such deficiency was properly served upon her. She was the grantee of the mortgaged premises and had assumed payment of the mortgage. The plaintiff, without obtaining leave as provided in section 1628 of the Code to sue her for the balance of the mortgage debt, sued her in this action for it. She demurred to the complaint, relying upon the section cited, and counsel for bobh parties appeared upon the argument of the demurrer, and the .plaintiff,- without having given defendant notice of ■ motion to that effect, asked leave to sue the defendant nunc fro tmnc as of the commencement of this action. The court sustained the demurrer and added to the order sustaining it a clause granting leave to the plaintiff to sue nunc fro time and to serve the amended complaint accordingly upon payment of the costs of the demurrer.

The defendant appeals from thé part of the order granting leave to sue nunc fro tunc, and insists that the court improperly granted it, since the defendant not having previous notice of such motion was not prepared with the facts to oppose it; and suggests that if the defendant had been duly notified of the intent to charge her with a deficiency upon the mortgage sale, the property would have been sold for a larger price.

We think that the facts stated _n the complaint, without counter affidavits impairing their force, would justify the order. (Earl v. David, 20 Hun, 527 ; affd., 84 N. Y. 634.) But in view of the suggestion of the defendant, and the fact that we sustained the sale at the same time that we relieved the defendant from the deficiency judgment (13 App. Div. 94), we now conclude to exercise our discretion in her favor, and reverse the order granting leave to sue nunc fro tunc, without costs and without prejudice to a renewal of the motion.

All concurred.

Order so far as appealed from reverse^, without costs, and without prejudice to a renewal of the motion.  