| N.Y. App. Div. | May 19, 1939
Each order affirmed, with ten dollars costs and disbursements. Memorandum: Defendants were sureties for the payment of a debt of $5,000 secured by a mortgage on real estate for that amount. The owners of the mortgaged property afterwards gave a $4,000 mortgage on the premises, and the plaintiff, owner of the $5,000 mortgage, without the knowledge or consent of defendants, made an agreement subordinating the $5,000 mortgage to the $4,000 mortgage. The $4,000 mortgage was foreclosed, in an action to which defendants were not made parties, and the $5,000 mortgage was cut off. In the complaint [and notices of motion for judgment], in the present action, plaintiff claims the right to recover $1,000 from defendants on their bond, conceding injury to defendants in the sum of $4,000 in having released that much of the security for the $5,000 debt on which defendants were liable. Defendants, by their answers, claim to have been injured to the extent of the whole $5,000, not entirely by reason of the release of $4,000 worth of the security, but by reason of the fact that defendants had the privilege of paying the $5,000 debt and taking over the $5,000 mortgage security, and that, through the cutting off of that security, without their knowledge or consent, defendants have been entirely deprived of that privilege. All concur. (The orders deny plaintiff’s motions for judgment on the pleadings.) Present — Crosby, Cunningham, Taylor and Dowling, JJ.