99 A.D.2d 910 | N.Y. App. Div. | 1984
— Appeal from that portion of a judgment of the Supreme Court, entered July 18, 1983 in Albany County, upon a decision of the court at Trial Term (Cholakis, J.), without a jury, which dismissed plaintiff’s second cause of action against defendant James D. Linnan and established July 1,1980 as the date from which interest is to be computed on plaintiff’s judgment against defendant Robert A. Spuck. Plaintiff’s decedent, George L. Mailloux, desired to sell a house and 13 acres of real property he owned on Normanskill Road in the Town of New Scotland, Albany County. Mailloux and defendant Robert A. Spuck entered into negotiations and the property was sold to Spuck and his wife for $70,000 on September 20, 1976. Defendant James D. Linnan, an attorney, represented the seller as well as the purchasers on the closing. In exchange for the transfer of this property, Spuck gave the seller a bond in the amount of $70,000 which obligated Spuck to pay the seller $300 a month commencing on September 1,1976 and running through August 1,1979. The bond agreement also provided that “in the event the obligor, using due diligence cannot obtain amortgage [sic] upon the said premises * * * in the 37th month, that the payments upon the said Bond shall continue pursuant to the terms hereof until same is paid in full”. When Attorney Linnan became aware at the closing that no mortgage was to be given, he told Mailloux that all he was getting was an “I.O.U.” and that the only collateral was Spuck’s signature. Linnan then had Mailloux sign a disclosure statement which stated that plaintiff was aware that no mortgage was being executed and that the personal