Van Brunt v. . Day
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment of the County Court of Kings county in favor of plaintiff entered upon a decision of the court on trial at Special Term. (Reported below, 17 Hun, 166.) This action was brought to foreclose a mortgage made by defendant Spicer to defendant Day and by him assigned to the plaintiff.
Read the full summary
Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, affirming a judgment of the County Court of Kings county in favor of plaintiff entered upon a decision of the court on trial at Special Term. (Reported below, 17 Hun, 166.) This action was brought to foreclose a mortgage made by defendant Spicer to defendant Day and by him assigned to the plaintiff. The assignment, which was under seal, contained a guaranty of “the payment of the amount due and to grow due thereon (the mortgage) in case of the failure of the mortgagors to pay the same according…
1Opinion of the CourtAndrews, J.
The defendant’s guaranty was in writing, and was contained in the same instrument by which he assigned the mortgage. It was an absolute undertaking to pay the mortgage, in the event of failure of payment by the mortgagors. This undertaking could not be varied by proof of an oral contemporaneous agreement that the guarantor was only to be bound on condition that the plaintiff should keep the premises insured for his protection. The rule is elementary that such proof, in the absence of fraud or mistake, is inadmissible to change or qualify a written agreement. But the answer of the defendant,…
2Cases cited1 opinion
- Hope v. . BalenNew York Court of Appeals · 1874
3Cited by17 opinions
- Mygatt v. . CoeNew York Court of Appeals · 1895
- Black Hills Nat'l Bank v. KelloggSouth Dakota Supreme Court · 1893
- Sayre v. MohneyOregon Supreme Court · 1899
- Sullivan v. California Realty Co.California Supreme Court · 1904
- Washabaugh v. HallSouth Dakota Supreme Court · 1893
12 more not listed; retrieve them via the Exa API.