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and the matter finally submitted to the arbitrators for their decision. A revocation, when allowed, must be made by an instrument in writing, signed by the revok. ing party, or his authorized agent and delivered to the arbitrators, or one of them; and it is not necessary in any case, that the instrument of revocation should be under seal. Any party to a submission may thus re. voke it ; whether he is a sole party to the controversy, or one of two or more parties on the same side.
Id., part of 8 23. Bank of Monroe v. Widner, 11 Paige, 529; Bloomer v. Sherman, 3 id. 575; s. C., 2 Edw. Ch. 452; Heath v. President of Gold Exchange, 7 Abb. N. S. 271 ; s. C., 33 How. 168; see Austin v. Searing, 16 N. Y. 112; Allen v. Watson, 16 Johns. 205; see Van Antwerp v. Stew. art, 8 id. 125; Robertson v. McNeil, 12 Wend. 578; Frets v. Frets, 1 Cow. 335; Howard v. Cooper, 1 Hill, 44; French v. New, 20 Barb. 481; see 2368, ante, and cases cited.
$ 2384. Liability of party who revokes.- Where & party expressly revokes a submission, made either as prescribed in this title or otherwise, any other party to the submission may maintain an action against him, and also against his sureties, if any, upon the submist sion, or any instrument collateral thereto, in which ac tion the plaintiff may recover all the costs and other expenses, and all the damages, which he has incurred in preparing for the arbitration, and in conducting the proceedings to the time of the revocation. Either of the arbitrators may recover, in an action against the revoking party, his reasonable fees and expenses.
Id., part of 33 23 and 24, R. S. Curtis v. Barnes, 30 Barb. 225; Frets th Frets, i Cow, 335; Smith v. Compton, 20 Barb. 262.
§ 2385. Limitation of recovery against him.- A sum, penalty, forfeiture, or damages, shall not be recovered for a revocation of a submission to arbitration, made either as prescribed in this title or otherwise, es. cept as prescribed in the last section ; notwithstanding any stipulated damages, penalty, or forfeiture, es pressed in the submission, or in any instrument col. lateral thereto. Id., 25.
$ 2386. Application of this title. This title does not affect any right of action in affirmance, disafirm. ance, or for the modification of a submission, mada either as prescribed in this title or otherwise, or upon an instrument collateral thereto, or upon an award made or purporting to be made in pursuance thereof. And
except as otherwise expressly prescribed therein, this title does not affect a submission, made otherwise than as prescribed therein, or any proceedings taken pur. suant to such a submission, or any instrument collateral thereto.
Part of $ 22, amended. Burnside v. Whitney, 24 Barb. 632; 8. C., 21 N. Y. 148.
Proceedings to foreclose a mortgage by advertisement. SEO. 2387. When mortgage may be foreclosed.
2388. Notice of sale; how given.
$ 2387. When mortgage may be foreclosed.-A mortgage upon real property, situated within the State, containing therein a power to the mortgagee, or any other person, to sell the mortgaged property, upon de fault being made in a condition of the mortgage, may be foreclosed, in the manner prescribed in this title, where the following requisites concur:
1. Default has been made in a condition of the mort. gage, whereby the power to sell has become operative.
2. An action has not been brought to recover the debt secured by the mortgage, or any part thereof; or, if such an action has been brought, it has been discon. tinued, or final judgment has been rendered therein against the plaintiff, or an execution, issued upon a
judgment rendered therein in favor of the plaintiff has been returned wholly or partly unsatisfied.
3. The mortgage has been recorded in the proper book for recording mortgages, in the county wherein the property is situated.
2 R. S. 545, 8? 1 and 2 (2 Edm, 564). Elliott v. Wood, 45 N. Y. 71; (en. tral Gold M. Co. v. Platt, 3 Daly, 263; Burnett v. Denniston, 5 Johns. Ch. 35; Ferguson v. Kimball, 3 Barb. Ch. 616; Jackson ex dem. Lockwood v. Turner, 7 Wend. 458; Coxv.Wheeler, 7 Paige, 250 ; Cameron v. Irwin, 6 Hill, 272; Warner v. Blakeman, 36 Barb. 501 ; 8. C., 4 Keyes, 487 ; Cohoes Co. v. Goss, 13 Barb. 137; Carpenter v. Blackhawk Gold Mining Co., 65 N. Y. 43; Central Gold Mining Co. v. Platt, 3 Daly, 263; Mowry ». San. born, 65 N. Y. 153, 156; Grovenor v. Day, Clarke, 109; Wells v. Wells, 47 Barb. 416 ; Slee v. Manhattan Co., 1 Paige, 48; Demarest v. Wynkoop, 3 Johns, Ch. 129.
S 2388. Notice of sale; how given. — The person entitled to execute the power of sale, must give notice, in the following manner, that the mortgage will be foreclosed, by a sale of the mortgaged property, or a part thereof, at a time and place specified in the notice:
1. A copy of the notice must be published, at least once in each of the twelve weeks, iminediately preceding the day of sale, in a newspaper published in the county or in a municipal corporation a part of which is within the county in which the property to be sold, or a part thereof, is situated. In effect, as amended, September 1, 1894; Laws 1894, ch. 190.
2. A copy of the notice must be fastened up, at least eighty-four days before the day of sale, in a conspicuous place, at or near the entrance of the building, where the county court of each county, wherein the property to be sold is situated, is directed to be held; or, if there are two or more such buildings in the same county, then in a like place, at or near the entrance of the building nearest to the property ; or, in the city and county of New-York, in a like place, at or near the entrance of the building, where the court of common pleas for that city and county is directed by law to be held.
3. A copy of the notice must be delivered, at least eighty-four days before the day of sale, to the clerk of each county, wherein the mortgaged property, or any part thereof, is situated.
4. A copy of the notice must be served, as prescribed in the next section, upon the mortgagor, or, if he is dead, upon his executor or administrator. A copy of the no tice may also be served, in like manner, upon a subse quent grantee or mortgagee of the property, whose con. veyance was recorded, in the proper office for recording
it in the county, at the time of the first publication of the notice of sale; upon the wife or widow of the mort. gagor, and the wife or widow of each subsequent grantee, whose conveyance was so recorded, then having an inchoate or vested right of dower, or an estate in dower, subordinate to the lien of the mortgage; or upon any person, then having a lien upon the property, subsequent to the mortgage, by virtue of a judgment or decree, duly docketed in the county clerk's office and constituting a specific or general lien upon the property.
The notice, specified in this section, must be subscribed by the person entitled to execute the power of sale, unless his name distinctly appears in the body of the notice, in which case, it may be subscribed by his attorney or agent.
Id., 23, amended; L. 1842, ch. 277,85; L. 1844, ch. 346, § 1, and L. 1857, ch. 308, 21 (4 Edm. 534, 667). Cohoes Co. v.Goss, 13 Barb. 137 ; Winslow v. McCall, 32 id. 241 ; Wells v. Wells, 47 id. 416 ; Mills v. Van Voorhies, 20 N. Y. 412; Brackett v. Baum, 50 id. 8-12; Merchants' Bank v. Thomson, 55 id. 7; see 2395, subd. 5, post; People v. Prescott, 4 Hun, 419; Van Slyke v. Sheldon, 9 Barb. 278; King v. Duntz, 11 id. 191; Rathbone v. Clark, 9 Abb. Pr. 66, note; Mowry 2. Sanborn, 65 N. Y. 581; s.c., 68 id. 153; Candlee v. Burke, 1 Hun, 546; Mickles v. Dillaye, 15 id. 296; Cole o. Moffitt, 20 Barb. 18; Anderson v. Austin, 34 id. 319; Decker v. Brice, 19 Hun, 152; Miller v. Lindsay, 19 id. 207; Ilubbell v. Sipley, 5 Lans. 51; 8. c., 50 N. Y. 468; Wilson v. Troup, 2 Cow. 195, 231 ; Westgate v. Handlin, 7 How. 372; Hornby v. Cramer, 12 id. 490; Judd v. O'Brien, 21 N. Y.186; see Leet v McMaster, 51 Barb. 237; see Wheeler v. Scully, 50 N. Y. 667; George v. Arthur, 2 Hun, 406 ; Groff v. Morehouse, 51 N. Y.503 n ; Decker 5. Boice, 19 Hun, 152; Anderson v. Austin, 34 Barb. 319; Low v. Purdy, 2 Lans. “22; Northrup v. Wheeler, 43 How. 122.
$ 2389. (Amended, 1887.) Id. ; how served.— Service of notice of the sale, as prescribed in subdivision fourth of the last section, must be made as follows:
1. Upon the mortgagor, his wife, widow, executor, or administrator, or a subsequent grantee of the property, whose conveyance is upon record, or his wife or widow; by delivering a copy of the notice, as prescribed in article first of title first of chapter fifth of this act, for delivery of a copy of a summons, in order to make personal service thereof upon the person to be served; or by leave ing such a copy, addressed to the person to be served, at his dwelling-house, with a person of suitable age and discretion at least fourteen days before the day of sale. If said mortgagor is a foreign corporation, or being a natural person, he, or his wife, widow, executor or administrator, or a subsequent grantee of the property whose conveyance is upon record, or his
wife or widow, is not are sident of or within the State, then service thereof may be made upon them in like manner without the State, at least twenty.eight days prior to the day of sale.
2. Upon any other person, either in the same method, or by depositing a copy of the notice in the post-office, properly inclosed in a postpaid wrapper, directed to the
person to be served, at his place of residence, at least twenty-eight days before the day of sale.
Id., & 3, amended; L. 1844. Winslow v. McCall, 32 Barb. 241; Wetmore v. Roberts, 10 How. 51; Root v. Wheeler, 12 Abb. 294 ; Northrupo. Wheeler, 43 How. 122; Hornby v. Cramer, 12 id. 490; Bunce v. Reed, 16 Barb. 47; Rathbone v. Clark, 9 Abb. 66; George v. Arthur, 2 Hun, 406; Robinson v.Ryan, 25 N. Y. 420 ; Dwight v. Phillips, 48 Barb. 116; Hornby V. Cramer, 12 How. 490; Bunce v. Keed, 16 Barb. 347 ; Stanton v. Kline, UN. Y. 196.
§ 2390. Duty of county clerk. A county clerk, to whom a copy of a notice of sale is delivered, as pre. scribed in subdivision third of the last section but one, must forth with affix it in a book, kept in his office for that purpose ; must make and subscribe a minute, at the bottom of the copy, of the time when he received and affixed it ; and must index the notice to the name of the mortgagor. | Id., 83 in part, as amended by L. 1857, ch. 308, 8 1.
$ 2391. Contents of notice of sale.-The notice of sale must specify:
1. The names of the mortgagor, of the mortgagee and of each assignee of the mortgage.
2. The date of the mortgage, and the time when, and the place where, it is recorded.
3. The sum claimed to be due upon the mortgage, at the time of the first publication of the notice; and, it any sum secured by the mortgage is not then due, the amount to become due thereupon.
4. A description of the mortgaged property, conform. ing substantially to that contained in the mortgage.
Id., 84. Hornby v. Cramer, 12 How. 490; Judd v. O'Brien, 21 N. Y. 386; Leet v.McMaster, 51 Barb. 236, 237; Burnott v.Denniston, 5 Johns.Ch. 35; Hubbell v. Sibley, 5 Lans. 51; 8. C., 50 N. Y. 468; Rathbone v.Clark, ♡ Abb. 68, note; Mowry v. Sanborn, 68 N. Y. 153; People v. Prescott, Hun, 419: Bunce v. Reed, 16 Barb. 347; Jencks v. Alexander, l1 Paige, 626; Candee v. Burke, i Hun, 546.
$ 2392. Sale; how postponed.—The sale may be postponed, from time to time. In that case, a notice of the postponement must be published, as soon as practicable thereafter, in the newspaper in which the orig. inal notice was published; and the publication of the original notice, and of each notice of postponement, must be continued, at least once in each week, until the time to which the sale is finally postponed. (Id., 86. Westgate v. Handlin, 7 How. 372; Miller o. Hull, 4 Den. 100; Jackson v. Clark, 7 Johns. 217, 226; Stearns v. Welsh, 7 Hun, 676.