182 Misc. 954 | New York County Courts | 1941
This is an appeal from a judgment of the Municipal Court of the City of Syracuse entered in the office of the Clerk of said court, on the 15th day of July, 1940, dismissing the complaint of the plaintiff, upon its merits, against the defendant Markson Bros., Inc., and awarding to said defendant a judgment in the sum of $49.25 costs. There has been no appeal from the judgment entered in said Clerk’s office, on July 17,1940. dismissing plaintiff’s complaint, upon the merits, against the codefendant Charles C. Cook, as sole surviving executor of the last will and testament of Charles E. Crouse, deceased.
The facts are substantially as stated in the opinion of the court below and were largely undisputed.
The decision of this case depends on whether or not the defendant Markson Bros., Inc., under the assumption clause contained in the deed from Charles C. Cook, as executor of Charles E. Crouse, is liable in an action at law for the amount of the unpaid interest accruing after the conveyance to said
This action to recover installments of interest and moneys advanced for the payment of taxes cannot be maintained against the executor of the Crouse estate, for the only remedy available to the mortgagee against the estate of the deceased or his devisees would be an action to foreclose the mortgage. (Levy v. Comfort, 257 App. Div. 1037, and cases cited therein.) The trial court properly dismissed the complaint as to the defendant-executor. It does not follow, however, that the mortgagee is likewise restricted in its remedy against a grantee who has assumed the mortgage.
There is no dispute as to the personal liability of Charles E. Crouse, the testator, during his lifetime to pay the mortgage debt according to its terms. He died in 1922, and in his will gave his executors authority' over his real property in the following language, “ I hereby fully authorize and empower them or their successors to sell and convey and lease until sold any and all real estate owned by me at the time of my decease, upon such terms and in such manner as they shall deem for the best interests of my estate, and give good and ample deeds of conveyance therefor.” One of the executors named in the will died in 1925, and the surviving executor conveyed the property to the defendant Markson Bros., Inc., by deed, dated and recorded February 18,1926. This deed contained the following words with reference to the mortgage against the property held by the plaintiff: ‘‘ This conveyance is made subject to a mortgage held by the Onondaga County Savings Bank upon which there is unpaid the sum of Seventeen thousand ($17000.) Dollars with interest thereon from January 1, 1926, which said mortgage the party of the second part assumes and agrees to pay as part of the consideration hereof.” The pivotal question upon which the decision in this case turns is: What was the liability assumed by the defendant upon the acceptance of the conveyance from the.executor with knowledge of the assumption clause therein? There has been no claim asserted that the defendant did not have such knowledge.
It is the contention of the defendant-respondent, and the trial court has held, that because plaintiff was limited in its remedy against the executor to an action for the foreclosure of the mortgage and the recovery of a judgment for any deficiency, the plaintiff is likewise limited in its remedy against the execu
A mortgagor is liable in an action at law for unpaid interest and moneys advanced by the mortgagee for the payment of taxes on the property covered by the mortgage despite the provisions of the so-called moratorium law. (Johnson v. Meyer, 242 App. Div. 798, affd. 268 N. Y. 701; Rochester Trust and Safe Deposit Co. v. Hatch, 273 N. Y. 507, motion for reargument denied 273 N. Y. 581.)
The grantee in a deed who has assumed and agreed to pay a mortgage on the real property conveyed to him is liable in such an action (Clonick v. Gordon, 11 N. Y. S. 2d 703). Likewise a guarantor of the payment of a mortgage has been held liable in such an action (Weinstein v. Empire Title & Guarantee Co., 257 App. Div. 867).
The judgment of the Municipal Court should be reversed, and a judgment granted to the plaintiff for the amount advanced by plaintiff for the payment of the defaulted taxes, with interest thereon from the date when the money was advanced, and in addition the amount of interest due at the time of the commencement of the action, together with costs.