102 N.Y.S. 707 | N.Y. App. Div. | 1907
In the year 1898 one Frank W., Gilbert was the- owner of four apartment houses in the city of New York, which- he had just erected. On October 18, 1898, he mortgaged the houses to the German Savings Bank for $165,000, and also placed a second mortgage upon them for $15,000. The latter mortgage was executed to one Bedfield, who assigned it to one Sondheim, and it will hereafter be spoken of as the Sondheim mortgage. It was agreed to be paid off in installments, commencing December,-1898. The property mortgaged was then worth about $245,000. ' When these mortgages were executed Gilbert was indebted as follows: To the plaintiff herein, $21,150; to William H. McWliirter, $9,656;’ to Abner T. Bowen, $26,500; . to Mary E. Busey, $27,000, and to William H. Busey, $895.84, aggregating $85,201.84. - No part of the claims of Abner T. Bowen, Mary E. Busey or William H. Busey were secured. -Part of plaintiff’s claim, to' wit, $3,500 thereof, was represented by an unrecorded mortgage. McWhirter’s claim was for materials furnished and work done and he was entitled to a mechanic’s lien. Gilbert, as it is said, promised to pay the ■ claims against him when he should have placed the permanent loan upon the property. Instead of doing'so, and on October nineteenth, th,e day after he had made the permanent mortgage to the savings bank, he executed and recorded a mortgage in favor of his mother-
This precise question, upon practically the same evidence, was decided by this court in a similar action brought by the defendant McWhirter (McWhirter v. Bowen, 103 App. Div. 447), and the judgment that Bowen was the real purchaser has recently been affirmed by the Court of Appeals. (187 N. Y. 516.) It is unnecessary, therefore, to consider that question further. If- Bowen in fact was the purchaser, as he undoubtedly was, the agreements into which lie entered with plaintiff and the other creditors impress a trust upon the property in his hands in favor .of his co-creditors. It is true, as he now urges, that he had not assumed any obligation to buy the property inasmuch as it involved the payment of a" sum of money, but having in fact bought he cannot escape the obligation to hold it as trustee for the creditors. The suggestion that the plaintiff is in someway barred by the judgment in McWhirter's action does not merit extended consideration. It is true that it was held that under the interlocutory judgment Eisert might come in and prove his claim and participate in the benefits of the first judgment. (82 App. Div. 144.) He did not take advantage of the opportunity, and the relief extended to him by the final judgment was reversed as to him, because, as to him, there was nothing to support the judgment. (103 App. Div. 447.)
He had not appeared in the action, had not participated in it, and was not bound to do so. The final judgment as modified by this court was not an adjudication upon his rights in any sense. It is strenuously urged that plaintiff has released all claims against the defendants. He did sign a receipt which contained words of release, but it did not apply to or affect his present claim to an
The so-called release does not, therefore, stand .in. plain tiff’s way. We are unable to see that any int'erlocutory decree for .any accounting was necessary. The amount of plaintiff’s claim is not disputed. All questions concerning Bowen’s receipts and disbursements while in possession of .the property as trustee for the creditors, and all . questions as to the disposition of the surplus moneys wére settled and disposed of upon the settlement winch 'resulted in the execution of the' release above referred to. There is, therefore, nothing left to be the subject of an accounting. .
. In one respect, however, the judgment must be modified. It . directs that Samuel T..Busey shall reconvey to Bowen, and'that the
The evidence is that Bowen paid, or procured to be paid, $30,000 upon the sale under the Sondheim mortgage, of which $20,411.64' went to satisfy the foreclosure judgment, the balance constituting the surplus which was accounted for by Bowen and of which Eisert received and receipted for his proportion. If Bowen is to be held to have purchased the property as trustee for the creditors, lie is entitled to be reimbursed what he paid out to acquire it, and that is the sum of $30,000, and not_ merely so much thereof as went to satisfy the Sondheim mortgage. .
The judgment must, thérefore, be so modified as to require plaintiff tp pay to Bowen, upon receipt of a deed, the stated .proportion of $30,000, with interest thereon from the date of sale, and as so modified should be affirmed, with costs.
Patterson, P. J., McLaughlin, Houghton and Lambert, JJ,, concurred.
Judgment modified as directed in opinion, and a$ modified affirmed, with costs. Settle order on notice.