112 N.Y.S. 809 | N.Y. App. Div. | 1908
The order for the examination of plaintiffs was too broad, but on one point the appellant was entitled to examine them. The order should, therefore, not have been vacated, but should have been modified. The appellant executed a bond and a mortgage on real estate to secure payment of the indebtedness. The bond and mortgage were assigned to plaintiffs who brought this action to foreclose the mortgage and to hold appellant liable for any deficiency. After executing the bond and mortgage the appellant conveyed the premises “ subject to ” the mortgage, and his grantee thereafter conveyed them to the husbands of plaintiffs. The assignment to the plaintiffs is alleged by appellant to have been ihade at a time when their husbands owned the fee. The appellant alleges as a separate defense that plaintiffs without his knowledge or consent entered into an agreement with their husbands whereby the time for paying the indebtedness secured by the mortgage was extended. Inasmuch as the land, in the circumstances, constituted the primary fund for the payment of the debt the liability of the appellant was released to the extent of the value of the land at the time the extension was granted, and he was thereafter liable not for any deficiency arising on the foreclosure, but for the difference between the indebtedness and the value of the land when the .agreement for the extension of time was made which is alleged to have been greater than at the time of the foreclosure. (Murray v. Marshall, 94 N. Y. 611; Matter of Piza, 5 App. Div. 181; Wiener v. Boehm, 126 id. 703.) It was intimated, if not held, in Matter of Piza (supra) that on this changed liability the obligor could not be held in the foreclosure action. It is not necessary to decide that question now^f&r if his liability cannot be determined in this action then the extension is a complete defense, and even if it can be determinen in this action the extension materially affects his liability and that is sufficient to authorize the order for the examination of the plaintiffs on that issue. (See Hart v. Chase, 67 App. Div. 445.)
USTo other material issue is presented by the answer of the appellant requiring the examination of plaintiffs.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of plaintiffs should be denied, without costs,, but the order
Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, without costs, but order for examination modified as stated in opinion. Settle order on notice.
