247 A.D. 759 | N.Y. App. Div. | 1936
Action to foreclose mortgage upon real property. The defendant Averell purchased the real property in question from one of the defendants O’Connell, for the sum of $65,000, by paying in cash the sum of $20,000, and taking the premises subject to consolidated mortgage under foreclosure in the sum of $20,000 and giving back a purchase-money mortgage in the sum of $25,000. The defendant Averell failed to pay interest on the first mortgage, which was held by a savings bank. He caused the mortgage to be assigned to the plaintiff, a corporation of which he is thfe president, and all of the stock of which he owns. This foreclosure followed. The trial court found and decreed that the first mortgage merged in the fee and that title is in the defendant Averell; that such mortgage be canceled of record and that the purchase-money mortgage held by one of the defendants O’Connell is the valid first mortgage and subsisting lien on the premises. Judgment reversed on the law and a new trial granted, with costs to plaintiff-appellant. The motives of the defendant Averell in buying the mortgage through the corporation plaintiff are not material in this case. The mortgage debt is due and has been transferred and is now owned by the plaintiff. The defendant O’Connell is responsible on the bond accompanying this mortgage. The facts proved do not establish a merger. A majority of the court is of the opinion that on the record here the plaintiff is entitled to judgment of foreclosure and sale. It appears that another action is pending involving this property in respect to the rescission of the purchase. The appellant asks not for judgment of foreclosure but for a new trial. Therefore, we grant a new trial. All findings and conclusions are reversed for the purpose of granting a new trial. Lazansky, P. J., Young, Carswell, Davis and Adel, JJ., concur.
