187 A.D. 126 | N.Y. App. Div. | 1919
This is an action to foreclose a mortgage on premises in the borough of The Bronx, in the city of New York, executed
The plaintiff alleged the facts with respect to the execution of the extension agreement but did not allege that it was made without the consent or knowledge of the respondents. The respondents alleged as a defense the execution of the extension agreement and claimed that they were thereby wholly discharged from liability; but it was not alleged, either by the plaintiff or respondents, that the premises had or had not depreciated in value since the making of the extension agreement. Thus by the pleadings no issue was presented with respect to whether or not the premises were adequate security for the indebtedness at the time the plaintiff, by a valid agreement, extended the time of payment of the indebtedness, or to what extent, if any, the security had since become impaired by depreciation or otherwise; and neither
The plaintiff made the necessary formal proof, including computation of the amount due, and rested. The respondents introduced the extension agreement and showed that they did not consent to its execution and had no knowledge of it, and offered to show that the respondent Aranka Hizsnay, who was the wife of the other respondent, had no interest in the proceeds of the bond and mortgage.
The respondents evidently rested, on the trial, on the theory of their answer, that the mere execution of a valid extension agreement wholly released them from liability, and they so contend here; but the only decisions cited that are in point on the facts and tend to sustain their contention are Merrill v. Reiners (14 Misc. Rep. 583) and Meuser v. Kirschbaum (84 id. 259), which are not authority in this court and are in conflict with the decision of this court in Matter of Piza (5 App. Div. 181). The only effect of the extension was to release the respondents to the extent of the value of the property at that time; and if it was worth the amount of the indebtedness owing, or more, of course, they were wholly released, but, if worth less, then they still remained liable for the difference between its then value and the amount of the indebtedness. (Matter of Piza, supra; Wiener v. Boehm, 126 App. Div. 703; Cohen v. Hecht, 128 id. 511; Neukirch v. McHugh, 165 id. 406.) If the grantee of the respondents had assumed the mortgage he would thereby, as between them and him, have become obligated to pay it, and they would then have stood in the relation of surety to the mortgagee for payment by him (Murray v. Marshall, 94 N. Y. 611; Calvo v. Davies, 73 id. 211; Paine v. Jones, 76 id. 274; Fish v. Hayward, 28 Hun, 456; affd., 93 N. Y. 646); but the agreement their grantee subsequently negotiated with the mortgagee did not constitute an assumption of the indebtedness as between him and the respondents, and, therefore, they remained liable to the mortgagee as original obligors on the bond, unless their liability was discharged or reduced by the extension, depending upon the value of the security and whether it subsequently depreciated. (Matter of Piza, supra; Cohen v. Hecht, supra.)
The respondent Aranka Hizsnay signed the bond in the presence of a subscribing witness; but she did not acknowledge it, and the execution thereof by her was proved by him. It
It follows that the findings and legal conclusions inconsistent with these views should be reversed and appropriate findings and conclusions in accordance therewith made, and the judgment, in so far as it is appealed from, should be reversed, witji costs to appellant, and provisions substituted therefor authorizing a deficiency judgment against respondents.
Clarke, P. J., Dowling, Smith and Merrell, JJ., concurred.
Judgment so far as appealed from reversed, with costs to appellant, and provisions substituted therefor authorizing a deficiency judgment against respondents. Order to be settled on notice.