
    (92 App. Div. 373.)
    HIDDEN v. VAN DYKE.
    (Supreme Court, Appellate Division, First Department.
    March 11, 1904.)
    1. Mortgages—Foreclosure—Order Overruling Answer—Reversal on Appeal-Proceedings in Lower Court.
    An order overruling the answer on foreclosure of a mortgage and directing judgment for plaintiff was reversed on appeal, and motion for judgment denied, but prior thereto a judgment of foreclosure was entered, and subsequently a resale thereunder was directed, unless the purchase under the first sale thereunder was completed. Held, that on the reversal of the order and denial of the motion appellant was absolutely entitled to the vacation of the judgment on application therefor, and that staying a readvertisement of the sale until after the determination of the issues raised by the answer did not protect appellant’s rights.
    2. Same.
    Though the judgment must thereupon be vacated, the sale need not be set aside, as the effect to be given thereto can be determined after the issues raised by the answer have been tried, and in a proceeding in which the purchaser is a party.
    Appeal from Special Term, New York County.
    Action by Thomas P. Hidden against Marion E. D. Van Dyke and others. From an order denying a motion to vacate a judgment of foreclosure and to set aside a sale thereunder, defendant Van Dyke appeals. Reversed.
    Argued before VAN BRUNT, P. J., and McEAUGHEIN, PATTERSON, O’BRIEN, and EAUGHEIN, jj.
    Franklin Bien, for appellant.
    William D. Gaillard, for respondent.
   McLAUGHLIN, J.

This action was brought to foreclose a mortgage upon certain real estate in the city of New York. The defendant Van Dyke interposed 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, 10 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, 85 N. Y. Supp. 197), 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 determination 'of 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 time 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 the 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, 8o N. Y. Supp. 739.

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 $10 costs and disbursements of appeal, and $10 costs of motion.

VAN BRUNT, P. J., and O’BRIEN and DAUGHDIN, JJ., concur. PATTERSON, J., concurs in result.  