The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-09-25
Supreme COurt-SpecIaI Term,

DECISION BY HON. JUDGE MITCHELL.
SEPT. 2.-Chartes n. Gilter Us. A-Or H0td. &c.
Azor Hoyt owned lands in this city, and mortgaesd
them to the plaintiff Atterward, on April ~, 1870.
he conveyed them, subject to the mortgage, TO Sem
ucl Smith, who, on Juno i, 1850, executed anoth-
mortgage, for 81 600, the same promises TO Y.
n. Cobb which was duly recorded. One BLOOMING
dale obtained judgment against Smith in tho So
rreme Court for more than 81 ,OO0 which was On
script was fled ana dockated in the Office Of ne
clerk Of this county Oct. II, 1851. BlydenburEh
Low owns that judgment, and it is unpaid. On
March 10, 1882, Tyler Obtained judgment in this
Count against smith, for upwards oil 81, 900, which
was guy docketed on that day; and on March ~,
1882, Tyler took out an order supplementary to e.
execution for the examination of oinith, and enoin-
l1g nm from assigning any OF his property, which
was served on Smith on TINT day. Before this Last
judgment was obtained Cobb's mortgage had been
reduce to 81 600, ard he had received from Smith
two pomisso,t notes OF 500 each made by Peck. :
ebor OF smith, collateral security for tho pap
ment OF said mortgage, and he gago receipt, stat
ing that the notes. when paid, would be in full Of
the amount due on the mortgage Also, before
March, 1857 the plaintiff had commenced foresle-
sure of his mortgage, and tho mortgaged premises
we're sold under that foreclosure by order Of this
Court, April 10, 1852, and yielded surplus Of ST.
IVY u beg ond the amount duo the plaintiff. On
April Il, 1892, Tyler served on Cobb notice a
the proceedings against Smith, and claimed = Lien
On the notes On june 2, 1852, the whole purchAss
money was paid to the Sheriff. On the 9Th Of that
month, Peck paid the amount of the two notes to
Cobb, WHO still holds the money and the bond ana
mortgage Peek was probably persuaded by Bly,
denbugh to make this payment The Judgment n
favor Of Bloomingdale was made up Correctly
against Samuel j Smith; but in the Judgment book
in Albany, and in the docket there and in this
county 1t was entered as against Samuel T. Smith.
On May 20, 1862, the docket here was corrected by
order of Judge Of this court and Of this dstrist
while at chambers, but by an order in court.
and Biydenbugb, with his consent, was on that
day made party defendant to the foreclosure suit
Blydenburgh and ~ Ter now oppose each other each
claiming for himself the whole surplus all objes-
tons as to the form in which the questions ars
brought up are waived. 1t is objected to the judy
ment held by Blydenburgh, that it was not hen q
against subsequent judgment creditor, because it
was not docketed 70 to give the true name Of We
defendant. The Christian and surnames were given
correctly, and these for some purposes constitute
the whole names and aterward the error in the let
ter 4, which IS not name, but only an initial Of
middle name was corrected by order Of the Court BY
substituting the initial in place of T. in che docket
here The judgment right, and needed no corres-
ton; and as to lands here, it inmate rial how ha
docket was in Albany. Transcripts is to be made
from the Judgment, Claws 1910, p. 3si, SEQ a6.s
not from an erroneous docket. The Judges in The
first district have power TO make orders ut cham
bers, rs II they were in COURT and although he
venue was laid in Albany, any Sxpreme Court jus
uce haa jurisdiction TO hear the motion, and make
the order; although, If objection were made, he
should not hesr the motion. The order, when made.
Is the order of the Supreme Court. 1t is said ne
order affected third persons The answer was given
Ill Chichester Candle, 3 Law, 1856, that cell
anne Moments affect more or less, third psrsonss
But II justice requires that they should DO made.
That objection will not prevent them bong made.
etul, the Court would save the right Of b0wG ~
purchases and membranes for and valn-
able consideration. judgment creditor for -
antecedent debt is not in this class. Then what
were tho rights Of Blooming dale before Tyler get
his ORDER for the examination Of Smith and whst
rights did Tyler acquire by that order Assuming
the most that is contended for that order gave -
greater rights to Tyler than if Smith had then
executed assignment to him. that is, 1t passed
to Tyler all Smiths title in any personal property
or rights OF action which he had. subject to ar
equities rights which other persons had in such
property Before that oider Bloomin gdaie had, b.
virtue Of his judgment, lien Smith sreal estate.
mortgage, prior lien on the samo real estate, to
the extent Of 900, but had also lien on tho tive
notes for the sum OF s 900 Cobb, then, had TIVE
securities for his debt, and Bloomingdale had ouAv
ere Of those securities. Bloomingdale had, there
fore, equity TO insist that Cobb should pay him
sell out OF the security on which Blocmiugdais hsA
no heii--Bameiy, tho notes--and leave the other
security-the !and-tc be resorted TO by Blooming
dale alone. Smiths title TO tho notes WAS subject
TO this EQUITABLE fight in favor OF Bloomin gda ana
when the order was made against Smith, enjoininx
MN ifom assigning his property, he had no right ia
tne notes except subject TO this equity in favor u
bloohlmgdale; end he could pass no right 10 Iy-
Ter except subject TO that right. The sarpius.
therefore, must be considered as passng 10 Blocn.
ingdale, under the judgment in bis favor, or 70 his
sssignee AS the difficulties arose from the om.
non Of Bloomingdae. or those acting for hm; ~
there has been no Unfair litigation, the oos's % 80
parties on tho reference should % paid ou' y -
fund.
United states District Court
sHprtNngR "a TIVE j,M. : Inc Graod Jury