Bankers Trust Co. v. G. H. Equities, Inc.

57 A.D.2d 601 | N.Y. App. Div. | 1977

In an action to foreclose a mortgage on real property, defendants S. Martin Gordon and Nattin Realty, Inc., appeal from a judgment of foreclosure and sale of the Supreme Court, Dutchess County, dated April 29, 1976, which was entered upon an order of the same court, dated December 2, 1975, which, inter alia, granted plaintiff-respondent’s motion for summary judgment and dismissed their answers. Appeal by Nattin Realty, Inc., dismissed as untimely (see CPLR 5513; Reinfeld v 325 West End Corp., 43 AD2d 671). Appeal by S. Martin Gordon dismissed on the ground that he is not an aggrieved party since he had assigned his mortgage to Nattin Realty, Inc. (which mortgage he claims is senior to plaintiff’s mortgage), before plaintiff instituted the within action for foreclosure. Plaintiff is awarded one bill of $50 costs and disbursements. If we were not dismissing the appeals, we would affirm the judgment on the merits. On the record, there is no warrant for the introduction of parol evidence to show that the modification agreement, notwithstanding its explicit language, was, additionally, a "spreader” agreement. Further, appellant Gordon waived any right as to the 10-acre parcel (the subject of the foreclosure action herein) when, in his amended complaint in his own foreclosure action, he excluded the said parcel (see Bodner v Brickner, 29 AD2d 441). Hargett, Acting P. J., Damiani, Rabin and Titone, JJ., concur.