
    (27 Misc. Rep. 55.)
    WASSON et al. v. HOFF et al.
    (Erie County Court.
    March, 1899.)
    1. Abatement—Death of Defendant—Judgment—Mortgages.
    Whore an action to foreclose a mortgage is brought against the owner of the property and others, and the owner dies after a decision declaring the mortgage a valid lien, determining the amount due, directing a judgment of foreclosure and a sale of the land, and awarding costs to plaintiff, but not determining the amount of such costs, or directing any deficiency judgment, or appointing a referee to sell the property, the action does not abate, and all further proceedings, up to the entry of final judgment, may be continued in the name of the original parties, under Code Civ. Proc. § 763, providing that if either party to an action dies after a decision or interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the names of the original parties, unless the decision -or interlocutory judgment is set aside.
    
      2. Same—Waiver—Appearance.
    In an action to foreclose a mortgage, a defendant, who appears by counsel in opposition to a motion for an extra allowance of costs and the appointment of a referee to sell the property, cannot subsequently move to set aside all proceedings after rendition of the interlocutory judgment directing the sale and granting other relief, because a co-defendant who owned the property died after such interlocutory judgment was rendered and before entry of final judgment.
    3. Same—Right to Object—Default.
    In an action to foreclose a mortgage, a defendant who has defaulted cannot move to set aside all proceedings subsequent to the interlocutory judgment directing a sale of the property, because a co-defendant who owned the property died after rendition of such judgment, but before entry of final judgment, unless he is a successor in interest of deceased.
    Action by Horace Wasson and others against Francis L. Hoff, Katherine Hoff, and Margaret E. Sherwood to foreclose a mortgage. Defendant Sherwood died before entry of final judgment, and the other defendants moved to set aside all proceedings subsequent to her death.
    Denied.
    Charles M. Harrington, for plaintiffs.
    Hartzell & Hartzell, for defendant Francis L. Hoff.
    O. O. Cottle, for defendant Katherine Hoff.
   EMERY, J.

This is a motion made on behalf of the defendants Katherine Hoff and Francis L. Hoff for an order directing that all proceedings in this action subsequent to the death of the defendant Margaret E. Sherwood (which occurred on January 1, 1899), including the appointment of a referee to sell, the allow-' anee of additional costs, entry of judgment, and issue and delivery of process to sell, be vacated and set aside as irregular, on the ground that Margaret E. Sherwood was dead, and her successors in interest had not been made parties to the action; that the action had abated, and had not been revived or continued; and the fee of the mortgaged premises had descended to persons who are not parties to the action, and no notice of said proceedings was given to such successors or the attorneys for the said Francis L. Hoff. This action was brought by the plaintiffs against Francis L, Hoff, Katherine Hoff, and Margaret E. Sherwood, as defendants, for the foreclosure of a mortgage covering premises situate in the city of Buffalo, Erie county, N. Y. The said defendants Katherine Hoff and Margaret E. Sherwood served answers, raising material issues to plaintiffs’ complaint. The defendant Margaret E. Sherwood was the owner of the equity of the premises described in the complaint. The action came on for trial, and was tried at a term of the county court, without a jury, in December, 1898, and a decision adjudicating the rights .of the various parties to the action, and determining all the issues raised, was made December 19, 1898, and duly filed in Erie county clerk’s office on the 21st day of December, 1898, and on the same day duly served upon O. O. Cottle, attorney for said answering defendants. The said decision determined that the lien of the plaintiffs’ complaint upon the said premises was a good and valid lien, determined the amount of the same, and directed a judgment of foreclosure and sale of the premises described in the complaint, together with other relief, as demanded in the complaint, and awarded to the plaintiffs costs and disbursements. The said decision did not determine the amount of costs, and no referee to sell was therein appointed. Motion papers for that purpose were- thereafter duly served upon O. 0. Cottle, as attorney for said defendants Katherine Hoff and Margaret E. Sherwood, on December 21, 1898, and the motion so made was argued January 5, 1899, before the court, said 0. 0. Cottle appearing in open court on behalf of said two defendants who had answered, and arguing the same in opposition to said motion; and thereafter, and on the 14th day of January, 1899, the said O. O. Cottle, in behalf of all the defendants, including the said defendant Margaret E. Sherwood, filed exceptions to said decision in Erie county clerk’s office and served a copy of same on the attorney for the plaintiffs. On January 1, 1899, the said defendant Margaret E. Sherwood died, then being the owner of the fee of said premises. It does not appear who her successors in interest are. No judgment for deficiency was asked for against the defendant Margaret E. Sherwood, and said decree and judgment of sale provided for no relief against her except the usual judgment of sale; and, so far as she and her successors in interest are concerned, the action is one in rem, and not one in personam. At common law, death abated all actions, so as to put an end to them, and compelled representatives or successors of deceased parties to begin as if the first action had not been instituted. The law at present applicable to this phase of the question, to wit, the death of the owner of the equity after decision made and on file, is section 763 of the Code of Civil Procedure, which provides: “If either party to an action dies after an accepted offer to allow judgment to be taken, or after a verdict, report, or decision, or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment, in the names of the original parties; unless the offer, verdict, report or decision, or the interlocutory judgment, is set aside.” The language of this section is imperative, and no amendment of parties would, therefore, seem necessary or permissible prior to the rendering of judgment. The decision in this action adjudicated all the rights of the parties, and directed everything that was necessary to be done, except it failed to appoint a referee to sell, and such decision is in reality a decree. It would, therefore, seem that the proper manner to enter judgment where a party dies after decision has been rendered, and before the judgment of sale or other judgment has been entered, is in the names of the original parties. Arents v. Railroad Co., 36 App. Div. 382, 55 N. Y. Supp. 401; Tuomy v. Dunn, 77 N. Y. 515; Long v. Stafford, 103 N. Y. 274, 8 N. E. 522; Grant v. Griswold, 21 Hun, 509; Smith v. Joyce, 11 Civ. Proc. R. 257. It is held in the case of Long v. Stafford, cited above, that where a party has died after verdict rendered against, him, and before judgment, that judgment can be entered in the original name of the party without change, and that the entry of the judgment is a mere formal matter, which the court could have ordered without notice. In that case the notice of motion for judgment was served upon the attorney for the deceased party, and after the party had died. The court says that this procedure was, at the most, irregular, but it does not hold that it was in fact irregular. It avoids deciding that issue, but it will be noted that the judgment there in question was a judgment in personam, and one requiring greater care than a judgment such as is entered herein, inasmuch as it would have to be executed against the representatives of the deceased party. In my opinion, the decision in the case at issue had practically the same force and effect as if a regular judgment of foreclosure and sale, taken by default, had been entered.

A decree made and entered before death of a party may be executed thereafter, notwithstanding the death of the party, and binds all persons claiming any interest under such party; and where the judgment is to be enforced by a sale of the party’s interest in the property, and not to be enforced in personam, as in this case, an application to revive is unnecessary. Hays v. Thomae, 56 N. Y. 521; Wing v. De La Rionda, 125 N. Y. 678, 25 N. E. 1064.

So far as the additional allowance to plaintiffs’ attorney for costs, and the appointment of the referee to sell, are concerned, the decision had already provided for costs and disbursements, but had not determined the amount of same, and it certainly would seem that the court had the authority to determine the amount of the costs to be allowed plaintiffs’ attorney, and to appoint an officer of the court to sell, in order to carry the decision into effect; but, in addition to the foregoing, the motion papers were served upon the counsel for .the defendant Sherwood while she was living, and such counsel appeared in open court, and argued the motion upon its merits, both for Katherine Hoff, one of the moving parties, to set aside said judgment, and also for Margaret E. Sherwood, now deceased. The Code of Civil Procedure (section 1297) provides that where a party dies, and judgment is entered in the name of the original party, the attorney for the party defendant who had died may serve exceptions, notice of appeal, and even procure and serve an undertaking in the name of such party, and that all •such acts inure for the benefit of the successors in interest of the deceased. The defendant Katherine Hoff appeared by counsel in open court in opposition to the motion for such extra allowance, and the appointment of a referee, and argued said motion, and, not having seen fit to avail herself at that time to object to the argument of the motion and the continuance of the action, has waived, on her part, the right to raise the question of irregularity, and cannot now raise the same on this motion; for if she fails to object to the proceeding on account of the irregularity at the earliest period, and before she takes any other step in the case, it is a waiver. Strong v. Strong, 4 Rob. (N. Y.) 621; Low v. Graydon, 14 Abb. Prac. 443; Lawrence v. Jones, 15 Abb. Prac. 110. So, therefore, as far as the defendant Katherine Hoff is concerned, she has waived all right to question the judgment by reason of any irregularity in obtaining the same, if any such exists. As to the defendant Francis L. Hoff, it appears he was in default, and was not entitled to notice of the motion for the appointment of a referee, or for extra allowance, and the irregularity, if any such existed, did not concern him in any way, as it does not appear from the moving papers that either he or the said Katherine Hoff' are the successors in interest of the defendant Margaret E. Sherwood. The ones aggrieved are the only ones who should be allowed to take advantage of any irregularity.

It would seem, therefore, that, the judgment being one for the sale of the premises only, so far as the said Margaret E. Sherwood is concerned, the action is not abated by her death, and no revivor is necessary, and that all proceedings were regular. I am therefore of the opinion that the judgment of foreclosure and sale was properly granted on January 5, 1899, and should stand, and, that being the case, there is no reason why process should not issue to the referee to sell. The case of Requa v. Holmes, 16 N. Y. 193, relied on by the moving party, does not seem to be in point, because the defendant in that case died before interlocutory judgment and before the rights of the parties were determined.

Motion denied, with $10 costs.  