93 N.Y.S. 335 | N.Y. App. Div. | 1905
The extension given to the Winslows, would have operated to release Stoothoff from his obligation- as mortgagor to the extent of the value of thé land, if that extension had been 'given without Stoothof^’s consent. (Murray v. Marshall, 94 N. Y. 611; Antisdel v. Williamson, 165 id. 372.) The consent to. ¡the extension was obviously obtained to prevent this result.' The assumption by the Winslows of the payment of the principal sum- and interest secured by the bond and mortgage, in consideration of' the extension, had nothing to do with Stoothoff’s liability/ It was an independent promise to satisfy the mortgage' debt, made in order to secure a postponement in the enforcement of the .mortgage against the land for a period of three years. The Winslows did not thereby ■ agree to pay the mortgage debt if Stoothoff failed to pay it, but they assumed its payment absolutely. When, therefore, they were forced to pay, they were paying not Stoothoff’s debt but their own. I canñdt see how the fact that, the, deficiency judgment might be enforced against Stoothoff in any manner operates to: relieve the Wins-lows from their obligation under a wholly independent agreement ' made between them and the mortgagee. No privity between them , and Stoothoff was created by his. consent to the extension, which w.as.a transaction .wholly between him and the mortgagee, in nowise affecting the enforcibilit’y of their promise to pay the mortgage debt. The.extension agreement was fully executed so far .as the mortgagee is concerned, and he thereupon became entitled to.enforce that part of it which bound the Winslows to pay the mortgage debt.
■ For these reasons it seems to me that the judgment at -Special Term should have been the other way, and I, therefore, advise a reversal , >
Hirsohberg, F. J., Woodward and Jehks,' JJ., concurred; Hooker,-J., not voting. .
Judgment reversed and new trial granted, costs to abide the final award of ■ costs.