Home Owners' Loan Corp. v. Margolis , 168 Misc. 945 ( 1938 )

Witschief, J.

Motion for reargument and to strike out quotations of law from an affidavit, and to set aside a sale of property, etc., denied, without costs. If an application had been promptly made to set aside the sale based upon a showing that a better price could be obtained, such motion would doubtless have been granted. But almost a year has now elapsed since the sale was held, and no showing is made that a better price is obtainable. Affidavits should not contain quotations of law, but no harm is done to any one and it is unnecessary that such quotations be stricken from the affidavit. The motion for a reargument seems to be based upon the claim that section 1083 of the Civil Practice Act, as amended by chapter 510 of the Laws of 1938, is applicable. That section was not overlooked, although it was not mentioned. The view was entertained that when the right to a deficiency judgment exists at the time when a mortgage is executed, it is a part of the contract which may not be impaired by subsequent legislation. (New York Life Ins. Co. v. Guttag Corp., 265 N. Y. 292, 296.) Even though emergencies may awake legislative powers that sleep in normal times, no emergency is asserted by chapter 510 of the Laws of 1938. The Court of Appeals has gone no further than to hold such legislation constitutional when reasonably seeking only temporary relief. (Klinke v. Samuels, 264 N. Y. 144, 149.) Chapter 510 of the Laws of 1938 is not designed for temporary relief, but as the future policy of the State toward deficiency judgments for all time, it, therefore, seemed to follow that section. 1083, as amended by chapter 510 of the Laws of 1938, could not constitutionally apply ,to the mortgage which was executed as this one was before that ¡act took effect and that to hold otherwise would render chapter 510 of the Laws of 1938 unconstitutional.