244 A.D. 102 | N.Y. App. Div. | 1935
The Bond and Mortgage Guarantee Corporation, agent for Bond and Mortgage Guarantee Company, in rehabilitation, appeals from an order directing the comptroller of the city
The order from which the present appeal is taken requires the comptroller to pay $24,592.81 to Rosario and Carolina Schillaci, and, upon filing a satisfaction or release of the $9,000 mortgage, to pay such sum to Frieda Zalmowitz, the mortgagee, with interest from May 1, 1930.
The injustice of sustaining such order is that the mortgagee will receive duplicate payments of interest. She claims that the advancement of interest to her by the guarantee company created a loan or debt owed by her to the company and which she has the right to offset against her own claims against such company by virtue of other mortgages held by her and which are guaranteed by the same company but which do not affect the property for which said award was made.
The guarantee company, as guarantor, was a surety and, therefore, entitled to assert the right of subrogation. (Havens v. Willis, 100 N. Y. 482; Cole v. Malcolm, 66 id. 363, 366.)
The principle stated in McGrath v. Carnegie Trust Co. (221 N. Y. 92) and Hanlon v. Union Bank of Medina (247 id. 389), to the effect that the equity of subrogation does not arise until the whole debt has been discharged, has no application, because the whole debt was discharged.
Each installment of interest, as it fell due, was a “ whole debt ” and may be treated as such. Advancement to the mortgage holder of each complete installment of interest is, therefore, payment of such claim in full
Lazansky, P. J., Young, Cabswell, Scuddeb and Johnston, JJ., concur.
Order modified by striking out the last two paragraphs and by inserting in lieu thereof a provision that the Bond and Mortgage Guarantee Corporation, as agent, has a valid lien against the fund in the hands of the comptroller for the sum of $1,350, and directing the comptroller to pay that sum to said corporation. As so modified, the order is affirmed, with ten dollars costs and disbursements to' Bond and Mortgage Guarantee Corporation, as agent, payable by respondent Frieda Zalmowitz.