Bernheim

Plaintiffs brought their action to foreclose a mortgage upon realty executed to them by the defendant Cerf. The complaint was unverified. The defendant filed an unverified answer. At the trial defendant did not appear. Plaintiff’s attorneys moved the court to strike the answer from the files for lack of verification, upon the somewhat negligent assumption that the complaint was a verified pleading. The motion was inadvertently granted by the court. A decree for plaintiffs was given upon May 26, 1896. The property was sold upon June 24, 1896, and was bought by plaintiffs. After this the discovery was made that the answer had been improperly stricken from the files, and upon July 6, 1896, plaintiffs moved the court to vacate the judgment, reinstate the answer and restore the cause to the calendar for trial. The motion was granted and Cerf appeals.

His contention is, that as plaintiffs were present at the trial and induced the error, their remedy was not under section 473 of the Code of Civil Procedure, but by motion for a new trial. In this, however, he is mistaken.

The course pursued by respondents was the appropriate one. “Courts of equity are ever ready to relieve from sales…