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Hurley v. McCleary

Decided: September 16, 1938.

ANNA M. HURLEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH P. MCCLEARY AND JAMES J. HAGANS, DEFENDANTS-APPELLANTS



On appeal from the Supreme Court.

For the appellants, Joseph Beck Tyler and Ernest Redfield.

For the respondent, Oscar B. Redrow.

PER CURIAM.

This is an appeal from a summary judgment entered in favor of the plaintiff upon an order of the court striking out the defendant's answer and special defenses and amended answer.

The suit was to recover the amount alleged to be due as a deficiency after the foreclosure of a mortgage. The bond sued on was given as additional security for the payment of the mortgage.

The answer of the defendants admitted for the most part the allegations of the complaint, but set up several defenses. The plaintiff moved to strike the answer and these defenses as being sham and frivolous and supported her motion by affidavits.

The first defense was a general denial.

The second defense alleged that at the time of filing of the bill to foreclose the mortgage there were two tenants on the mortgaged premises who had rented from the defendants for an indefinite term, and that they were in possession at the time of the entry of the final decree, and at the time of the sale, and that they were not made parties to the foreclosure suit; and defendants argue that by reason thereof there can be no recovery for the deficiency.

The trial court, citing American Italian Building and Loan Association v. Liotta, 117 N.J.L. 467, which held that a tenant must be made a party to a foreclosure suit in order for the plaintiff to recover a deficiency judgment, found from the undisputed facts contained in the affidavit submitted by the respective parties that the alleged tenants were caretakers and that they were therefore not necessary parties to the forclosure suit. It was not denied that the premises were vacant at the time of the sheriff's sale, February 5th, 1937, and that at the sale the solicitor of complainant announced that said premises were vacant and that there were no outstanding leases or agreements against the same and that possession would be delivered at the time of settlement with the sheriff. See Harvester Building and Loan Association v. Elbaum, 119 Id. 437; 196 A. 709.

We think the trial court properly struck the second defense.

The third defense alleged that the sum of $3,200, the price at which the mortgaged property was sold to plaintiff, was not a fair market value but that it was worth $7,500. This the trial court found was ...


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