64 N.Y.2d 1158 | NY | 1985
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed, with costs to defendants Domenico Antonelli, and Yee Woo Lum and Po Wah Lum (the “defendants Lum”), against plaintiff and defendant The Long Island Savings Bank.
The weight of the evidence more nearly comports with the findings at the Appellate Division (102 AD2d 258). We add only that there is no basis for recovery of attorneys’ fees by the bank against the defendants Lum, or against defendant Antonelli. As to the defendants Lum, any such liability they might have had under the original mortgage was discharged when the mortgage was assumed, with an increased interest rate and term, by Antonelli (see, 38 NY Jur, Mortgages and Deeds of Trust, § 183). Nor can the bank now recover attorneys’ fees against Antonelli, since it asserted no such claim against him below.
Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in memorandum.
Order affirmed, etc.
