
    Thomas B. Hidden, Respondent, v. Fred S. Godfrey and Others, Defendants, Impleaded with Marion E. D. Van Dyke, Appellant.
    
      Judgment of mortgage foreclosure, entered after an answer was overruled as frivolous— order overruling answer reversed, on appeal — the Special Term must vacate the judgment.
    
    One of the defendants in an action to foreclose a mortgage on real property-interposed an answer which was overruled as frivolous. A judgment of foreclosure was entered September 17, 1903, pursuant to which the premises were sold on October 14, 1903. The purchaser at the sale refused to take title on the ground that the judgment was illegal and thyt an appeal had been taken from the order overruling the answer.. An order was subsequently entered directing that the premises be resold unless the purchaser, on or before October 14, 1903, completed the purchase. Prior to October 14, 1903, the order overruling the answer as frivolous and directing judgment for the plaintiff’was reversed by the Appellate Division. Thereupon the answering defendant moved for an order vacating the judgment and setting aside the sale. The court denied the motion, but stayed the plaintiff from readvertising the sale until after the determination of the issues raised by the defendant’s answer.
    
      Meld, that the answering defendant was entitled to have the judgment vacated, as the judgment of foreclosure necessarily fell with the reversal of the order overruling the answer as frivolous and directing the entry of judgment;
    That the Special Term had no discretion, but was required to vacate the judgment of foreclosure upon the application of the answering defendant;
    
      'That the question as to what effect should be given to the sale should be deter-’ mined after the trial of the issues raised by the answer and in a proceeding to -which the purchaser was a party.
    Appeal by the defendant, Marion E. D. Van Dyke, from, so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of January, 1904, as denies said defendant’s " motion to vacate and set aside a judgment of foreclosure and sale theretofore entered in the action as well as the sale had thereunder.
    
      FramMin Bien, for the appellant.
    
      William JD. Gadllard, for the respondent..
   McLaughlin, J.:

This action was brought to foreclose a mortgage for $80,000 -upon certain real estate in the city of New York. The defendant 'Van Dyke inteiposed an answer which was overruled upon the ground that it was frivolous, and a judgment of foreclosure was entered on the 17th of September, 1903. On the 14th of October, 1903, a sale was had in pursuance of the judgment and the premises purchased by one Corwin for $141,000 — ten per cent of the purchase price being paid to the referee at the time of the sale. Corwin thereafter refused to complete the purchase, he having been notified by the attorney of the appellant. that the judgment was irregular and that an appeal had been taken from the order overruling the answer interposed by the appellant. Subsequently, upon application, an order was entered directing that the premises be resold unless •Corwin, on or before the 14th of December, 1903, complete the purchase, and upon such resale he be held liable for any deficiency which might arise. Prior to the 14th of December, 1903, the order ■overruling the answer as frivolous and directing judgment for the" plaintiff was reversed by this court and the motion for judgment ■denied (Hidden v. Godfrey, 88 App. Div. 496), and thereupon the appellant moved for an order vacating the judgment and setting aside the sale. The motion was denied, but the plaintiff was stayed from readvertising the sale until after the issues raised by the defendant’s answer had been disposed of. It is from this order that the present appeal is taken. ■

I think the motion, in so far as it asked to have the judgment vacated, should have been granted. This court had, prior to the timé the motion was made, determined that the order overruling the appellant’s answer as frivolous was erroneous and that the motion for judgment on the answer as frivolous should have been denied. This determination was binding upon the Special Term and should have controlled its action when the motion was thereafter made to vacate the judgment. When this-court reversed the order overruling the answer as frivolous and directing the entry of judgment, the judgment itself necessarily fell, inasmuch as this determination left an issue raised by the pleadings in the action to be tried and disposed of before any judgment could be entered. It is no answer to tlm suggestion that the appellant under the decision of this court was entitled to have the judgment vacated, to say that the disposition made by the Special Term ¡protects whatever rights she has. It does not do that. The plaintiff has a judgment against her to which he is not entitled and necessarily cannot be until the issues raised by'the answer have been tried. Nor was there any discretion in the Special Term after this court, reversed the order and denied the motion, but to vacate the judgment when application was made for that purpose.

As to the sale, it is unnecessary to determine at this time what effect should be given to- it. That question can be determined after the issues raised by the answer have been tried-and in a proceeding-in which the purchaser is a party. (Schieck v. Donohue, 81 App. Div. 168.)

It follows that the order appealed from must be reversed so far as it denied the motion to vacate the judgment, and to that extent the motion should be granted, with ten dollars costs and disbursements of appeal and ten dollars costs of motion.

Van Brunt, P. J., O’Brien and Laughlin, JJ., concurred ; Patterson, J., concurred in result.

Order reversed so far as it denied motion to vacate judgment, and to that extent motion granted, with ten dollars costs and disbursements of appeal and ten dollars costs of motion.'  