Thomas v. Zahka
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Alexander Zahka and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1917, upon the decision of the court after a trial before the court, a jury having been waived. The action was brought to recover for the alleged breach of a participation agreement regarding a bond and mortgage.
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Appeal by the defendants, Alexander Zahka and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1917, upon the decision of the court after a trial before the court, a jury having been waived. The action was brought to recover for the alleged breach of a participation agreement regarding a bond and mortgage. Defendants on June 6, 1913, made a loan of $2,000 to one Plaisantin, and took as security a $3,500 bond and mortgage, which was a fifth lien on Brooklyn property. This bond to the…
1Opinion of the Court
Putnam, J.:
Defendants were vested with the title to this mortgage, and had the full right to protect their own superior interests. They did not become trustees for plaintiff. The two portions of the original debt were severed, as if secured by separate and successive mortgages. Notice to plaintiff by making her party to any foreclosure was, of course, necessary, since otherwise the decree and sale might be defective. (Wilt. Mort. Forec. § 116.) Defendants had agreed to pay over to, or account to, plaintiff for what she might be entitled to beyond defendants’ $2,000 interest. They had the…
2Cases cited4 opinions
- Lowenfeld v. WimpleAppellate Division of the Supreme Court of the State of New York · 1910
- State Bank v. . SmithNew York Court of Appeals · 1898
- Lowenfeld v. . WimpieNew York Court of Appeals · 1911
- Thomas v. ZahkaNew York Supreme Court · 1917
3Cited by2 opinions
- Beach v. Tangier Hotel Co.New York Supreme Court · 1920
- In re Prudence Co.District Court, E.D. New York · 1936