131 Misc. 148 | N.Y. Sup. Ct. | 1928
The plaintiff in each of these cases demands a judgment for $6,000, the full amount of a bond given to insure the erection, upon each of the separately mortgaged premises, of a building of a given type, although the actual money loss suffered by each plaintiff was the sum of- seventy-two dollars in the form of a deficiency judgment rendered in each action brought to foreclose the mortgage owned by each plaintiff on the properties in question. Because the mortgages were made December 29, 1924, and the surety bonds were not executed until January 26, 1925, plaintiffs argue that there is no connection between the two and that, therefore, the plaintiffs are not limited to the damages caused by the failure of the property sold under foreclosure, to bring the full amount of the mortgages, but that each plaintiff is entitled to the full amount of his bond because on May 30, 1925, the last day upon which suit could be brought on the bond, the houses, had not been erected on the lots in pursuance of the agreements and the bonds in question. The plaintiffs were mortgagees of the property in question and there is no question despite the difference in time between the execution of the mortgages and of the bonds but that the bonds were given as a further security for the payment of the mortgage debts. As the plaintiffs had no interest other than as mortgagees in the premises in question there could have been no other purpose for which the bonds in question were executed and given. Plaintiffs rely on the case of Kidd v. McCormick (83 N. Y. 391). As to this case counsel for plaintiffs says: “ In the Kidd v. McCormick case, foreclosure of the purchase money mortgage had evidently preceded the then action on the bond; and yet the
The defendants’ motions to dismiss in each case are, therefore, denied with an exception to the defendants and a verdict is directed for the plaintiff in each case in the sum of seventy-two dollars, with interest.