44 N.Y.2d 843 | NY | 1978
Statewide Savings and Loan Association, Appellant,
v.
Canoe Hill, Inc., Respondent, et al., Defendant.
Court of Appeals of the State of New York.
Robert L. Carnright for appellant.
Carroll J. Mealey and Thomas O. Kellogg for respondent.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
*845MEMORANDUM.
In this case, where the parties are the original mortgagor and mortgagee, any intention to include the personalty within the embrace of the mortgage by its omnibus reference to "all the fixtures and articles of personal property, now or hereafter attached to or used in connection with the premises" is negated by the simultaneous execution of the separate security agreement covering "Furniture * * * and all equipment * * * owned by the debtor for use in connection with the maintenance and upkeep of the golf club and golf course" (cf. General Synod of Reformed Church v Bonac Realty Corp., 297 N.Y. 119; East Riv. Sav. Bank v 671 Prospect Ave. Holding Corp., 280 N.Y. 342). Consistently, the complaint did not allege that the mortgage covered the personal property, the referee's notice of sale on foreclosure did not enumerate it, the auctioneer did not offer it and the referee's report was completely silent on the subject.
Accordingly, the order should be affirmed, with costs.
Order affirmed.