145 N.Y.S. 1 | N.Y. App. Div. | 1914
Dissenting Opinion
By the judgment herein foreclosing a second mortgage, the appellant is adjudged liable on his bond for any deficiency. He pleaded that on the 10th day of September, 1909, when the indebtedness became due, the market value of the premises was more than adequate security for the indebtedness, and that on the eighteenth day of February thereafter, the plaintiff as mortgagee, without the knowledge or consent of appellant, and the then owner of the premises, who had taken the same subject to but had not assumed the mortgage, entered into an agreement whereby the amount of the first mortgage was increased in the sum of $3,000, on a payment to apply on plaintiff’s mortgage of only $375, and that this transaction terminated the appellant’s liability and that appellant is not indebted to the plaintiff in any sum whatever or liable for any deficiency. It is not expressly alleged in the answer that at the time the extension agreement was made the premises were adequate security for the mortgage debt, but from the facts alleged, as already stated, that was fairly to be inferred. Where a grantee of mortgaged premises assumes and agrees to pay the mortgage, the mortgagor is ipso facto wholly released from liability on his bond by any extension of time for the payment of the debt secured by the mortgage without his consent (Paine v. Jones, 76 N. Y. 274; Calvo v. Davies, 73 id. 211; Matter of Piza, 5 App. Div. 181); and if the grantee does not assume the mortgage, then the mortgagor is released to the extent of the value of the premises at the time the extension was granted. (Murray v. Marshall, 94 N. Y. 611; Matter of Piza, supra.) It is not expressly alleged in the answer that at the precise date of the extension agreement the premises were adequate security for the mortgage debt; but that fact might fairly be inferred from the fact that the plaintiff, on this comparatively small payment to apply on its mortgage, consented to an increase of the lien of the first mortgage to the extent of $3,000. In Murray v. Marshall (supra) the Court of Appeals inferred from the making of a payment by the owner, who had not assumed the mortgage, as a condition of obtaining the exten
See 78 Misc. Rep. 461.— [Rep.
Lead Opinion
Ho opinion. Present — Ingraham, P. J., McLaughlin, Laughlin, Dowling and Hotchkiss, JJ.; Laughlin, J., dissented.