100 N.Y.S. 1005 | N.Y. App. Term. | 1906
It seems to be conceded that the action was brought to recover “damages to real property, and trespass in taking, carrying away, and converting mortgaged property.” It was tried as though an action to recover damages for impairment of plaintiff’s mortgage security, and probably the court allowed a recovery as though for such damage. This, however, should not have been done, even though the evidence showed such a cause of action, until the complaint had been amended. It seems that, if a person intentionally impairs a mortgage as a security by removing any part of the real property covered by a mortgage, he does a wrongful act against the mortgagee, and is liable in an action for damages by the mortgagee for the impairment of the mortgage as a security. If, in the present case, the defendant Ruelius knew that by taking the sashes from the premises the value of plaintiff’s mortgage as a security would be impaired, be would be legally chargeable with a design to effect that object, al
Such a cause of action as has been referred to is in tort. Its gravamen is a fraudulent intent or wrongful purpose to impair or destroy the lien, and to support such an action the facts must be such as to warrant an inference to that effect. Hovey v. Elliott, 118 N. Y. 139, 23 N. E. 475. This is so, as the lien of the mortgage gave the mortgagee no title to the land. According to the evidence presented at the trial, the mortgagee had but a lien, and no title to the land, and no possession. There could, therefore, have been no recovery for damages to real property or trespass. It does not appear from the evidence that Ruelius knew the plaintiff had a mortgage upon the property. It might be naturally guessed that he knew of it, but it could not by fair inference be said from the evidence that he knew it. The evidence as to his receipt of the check and his presence at the office falls short of evidence warranting a finding that he knew of plaintiff’s mortgage.
The judgment will be reversed, and a new trial ordered, with costs to appellant to abide the event.
