O'Brien v. . Fleckenstein
New York Court of Appeals
Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 20, 1903, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. This court has jurisdiction to review the order of the Appellate Division.
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Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 20, 1903, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. This court has jurisdiction to review the order of the Appellate Division. (O’Brien v. Fleckenstein, 177 N. Y. 554.) It was error for the Appellate Division to reverse on the facts, since no material disputed question of fact was before that court for…
1Opinion of the CourtO’Brien, J.
The plaintiff in this action sought to foreclose a mortgage for §1,300, dated July 9tli, 1902, and due in three months from date. It ajjpears that there was paid upon this mortgage the sum of §500. The mortgage was not recorded until 27ovember 25th, following its date. The firm of W. B. Morse & Sons held another mortgage on the same premises for §1,350, bearing date 27ovember 17, 1902, due one month from date and recorded November 18th, 1902, or before the mortgage of the plaintiff.
A part of the relief which the plaintiff demanded- in the action was that the court- adjudge that his mortgage,…
2Cases cited12 opinions
- Weaver v. . BardenNew York Court of Appeals · 1872
- Cary v. . WhiteNew York Court of Appeals · 1873
- Hubbard v. . GurneyNew York Court of Appeals · 1876
- Brown v. . LeavittNew York Court of Appeals · 1865
- Ten Eyck v. . WitbeckNew York Court of Appeals · 1892
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