269 A.D. 717 | N.Y. App. Div. | 1945
Both actions were brought for the foreclosure and sale of premises covered by the lien of the same mortgage. Action No. 1 was first instituted. The plaintiff Malinoski therein, and his wife, had executed the mortgage to one Buchaniee to secure the payment of $4,000 in 1929. In 1933 an assignee of the mortgage assigned it and its accompanying bond to the original mortgagee Buchaniee, and one Julia Kuehnle (the latter being the plaintiff in action No. 2), wherein it was agreed and stated that the interest of Buchaniee “in said mortgage amounts to the sum of $1,200, with interest on such sum, and the interest of Julia Kuehnle in such mortgage amounts to the sum of $2,800, with interest on such sum.” This latter assignment was duly recorded on June 2, 1933, and thereafter Malinoski made payments to Kuehnle on account of her separate participating interest. On April 1, 1942, the said Malinoski, then a widower, conveyed to the defendant Walter Mekody, a part of the mortgaged premises, and therein the latter assumed- the payment of the whole amount unpaid upon the mortgage. Shortly thereafter and on May 27, 1942, the aforesaid Buchaniee executed a release to Malinoski of the part of said mortgaged premises which the latter had excepted from his con
