In re the Final Accounting of Simpson, 36 A.D. 562

In re the Final Accounting of Simpson

36 A.D. 562 | N.Y. App. Div. | 1899

Herrick, J.:

The most serious contention made upon this appeal is against the allowance and payment by the receiver of a dividend to the creditor Marks, upon the whole amount of his bond and mortgage, notwithstanding he had, after the appointment of the. receiver, and the sale of the real estate by him, foreclosed his mortgage, and obtained judgment for a deficiency.

The corporation having assumed the payment of the mortgage when it took the conveyance of the property, thereby became the *564debtor of the mortgagee, and. said mortgagee could enforce the' payment of the mortgage debt by such corporation. (Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 id. 253 ; Hume v. Hendrickson, 79 id. 117; Schley v. Fryer, 100 id. 71; Wager v. Link, 134 id. 122; Clark v. Howard, 150 id. 232; Wager v. Link, Id. 549.) Such indebtedness is not a contingent liability of the party assuming the payment of the mortgage; by such assumption he becomes the principal debtor. ( Warren v. Wilder, 114 N. Y. 209, 214.) And the mortgagee can enforce its collection against the person so assuming it without resort to the mortgagor or foreclosing the mortgage. (Burr v. Beers, supra ; Thorp v. Keokuk Coal Co., supra.) At the time of the insolvency of the corporation and the appointment of the receiver herein, nothing had been realized upon the mortgage by its holder; the whole amount of it was then owing by the corporation; and the holder of the mortgage had a right to foreclose the mortgage, and in the event of a deficiency, demand and receive a dividend upon the whole amount of his debt as it existed at the time of the appointment of the receiver, without regard to the proceeds of the sale received by him, provided such dividend did not exceed the amount of the deficiency. (People v. Remington, 54 Hun, 505 ; S. C., 121 N. Y. 328; Chemical Nat. Bank v. Armstrong, 19 Fed. Rep. 372.)

Objection is also made to the allowance to the partner of the receiver of a sum in compensation for legal services rendered as counsel, to the receiver.

While the practice of trustees employing their copartners in business as .counsel in their legal matters is one not to be commended, still when it clearly appears, as in this case, that the trustees have not, and are not, to share in the compensation for such services, there is no law against such employment and payment. (Parker v. Day, 155 N. Y. 383.)

I have examined the other objections raised by this appeal and find nothing in them to call for discussion or for a reversal of the order.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements/