
    Frank Radich, complainant-appellant, v. Morris Bloomberg et al., defendants-respondents.
    [Submitted February term, 1947.
    Decided June 27th, 1947.]
    
      
      Mr. Milton T. Lasher, for the complainant-appellant.
    
      Mr. Isadore Glauberman, for the defendants-respondents. .
   The opinion of the court was delivered by

McLean, J.

This appeal brings before the court for review, orders of the Court of Chancery under the Soldiers’ and Sailors’ Civil Relief Act of 1940, Title 50, U. S. C. App., § 501, &c.

Bespondent Nathan Bloomberg was the owner of an undivided one-third part of premises in the Borough of Cliffside, Bergen County. Appellant, Frank Badich, filed his bill to foreclose a mortgage on the premises. During the time the foreclosure suit was in progress, respondent was in the military forces of the United States. A final decree was entered November 28th, 1943. The premises were sold to appellant and the sale was duly confirmed. Bespondent was discharged from military service October 30th, 1945, and on January 30th, 1946, filed a petition with the Court of Chancery to have the foreclosure proceedings reopened to the end that he might be permitted to answer the bill of complaint setting up his defenses.

Appellant moved to dismiss the petition on the ground that it was not filed within 90 days of the respondent’s separation from military sendee; that it did not show that by reason of his military service respondent was prejudiced in making his defense; or that he had a meritorious and legal defense to the action or some part thereof, as required by section 520 of the act. The court below denied the motion and held that under sections 525 and 532 of Title 50, respondent was entitled to make application to open the decree during the period of his military service or three months thereafter, and an order was entered opening the interlocutory decree and the final decree as to respondent alone and granting him 20 days in which to answer the bill of complaint. This appeal is from the order denying the motion to dismiss the petition and the orders opening the interlocutory and final decrees. We conclude that respondent’s petition should have been dismissed.

The Soldiers’ and Sailors’ Civil Relief Act, supra, was intended to give members of the armed forces a degree of mental repose, protect their rights and remedies and free them from hardships that might be imposed solely because of the performance of their duties. It is fo be administered as an instrument to accomplish substantial justice, which requires an equitable consideration of the rights of both parties to the end that their respective interests may be properly conserved. It is not to be used as an instrument to obtain indefinite delay. Franklin Society for Home Building and Savings v. Flavim, 40 N. Y. S. (2d) 582; 265 App. Div. 720; affirmed, 291 N. Y. 530; certiorari denied, 320 U. S. 786; New York Life Insurance Co. v. Litke, 45 N. Y. S. (2d) 576; Meyers v. Schmidt, 46 N. Y. S. (2d) 420; The Sylph, 42 Fed. Supp. 354.

The application of provisions of the act authorizing relief against immediate imposition of burdens of an obligation incurred prior to commencement of military service, is not authorized by merely showing that applicant is or had been in the military service, but there must be proof and the court must be of the opinion that serviceman’s ability to comply with terms of his obligation has been materially affected by military service. New York Life Insurance Co. v. Litke, supra.

Under the comparable act of 1918, it was held while the courts will protect the men engaged in the -service of the nation from loss in legal proceedings brought about by absence in service, the papers should show that the threatened injury is due to their service and consequent inability to protect their interest, and this is the plain direction of the Act of Congress, Eietz v. Trempel, 170 N. Y. S. 108.

Respondent relies particularly on section 533, supra, which provides that “no sale or foreclosure shall be valid * * * unless upon order previously granted by the court and a return thereto made and approved by the court.” Foreclosure proceedings have been considered a sufficient compliance with this proviso. Cases above cited and Ninth Federal Loan Association of New York City v. Radding, 48 N. Y. S. (2d) 762. This suit was brought in the New York state courts to foreclose a mortgage against property owned by Jason D. Eadding. Eadding at the time the foreclosure was begun, was serving in the military forces. He moved for a stay on the ground of his military service. The motion was denied because of his failure to show that he had a defense.

Eadding then brought a suit in the United States District Court for the Southern District of New York against the plaintiff in the above suit to obtain a stay of further proceedings in the state court and for an order or judgment setting aside the state court’s foreclosure sale if it had taken place. The motion was denied and the complaint dismissed. It was held that the New York state court’s foreclosure decree, notwithstanding mortgagee’s application for relief under the Soldiers’ and Sailors’ Eelief Act, section 532, supra, was res adjudícala in the federal court of the mortgagee’s right under the act. Radding v. Ninth Federal Savings and Loan Association, 55 Fed. Supp. 361.

Eespondent had notice of the foreclosure suit and his interests were adequately protected. Subpoena was issued and returned non esl followed by substituted service by the publication and mailing of the required notice. Solicitor was appointed to protect his interests and appears to have been faithful in his service. Eespondent was in direct contact with him by mail, but took no interest in the proceedings. The foreclosure proceedings were concluded on November 20th, 1943. Eespondent was discharged from military service on October 30th, 1945. At any time during his service or within ninety days of his discharge, he could have applied to have the foreclosure decree reopened. It was not until the last day of the three months’ limitation under section 532, supra, more than two years after he had notice of the suit, that his petition was filed, or that he took any steps to avail himself of the remedies provided.

Eespondent does not make it appear that by reason of his military service he was prejudiced in making his defense or that he has a legal and meritorious defense to the suit or any part thereof, nor does it appear that'he was diligent in pursuit of his remedy.

The .orders below will be reversed, and the cause remanded to the Court of Chancery, with instructions to dismiss the petition.

For affirmance — None.

For reversal — The Chiee-Justice, Bodine, Donges, Heiier, Colie, Wacheneeld, Eastwood, Wells, Dill, Freund, McGeehan, McLean, JJ. 12.  