Cresco Realty Co. v. Clark
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Edmund Clark, from a judgment of the County Court .of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of April, 1908, upon the decision of the court rendered after a trial before the court without a jury. This suit is by the mortgagee to foreclose a bond and mortgage for principal and interest.
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Appeal by the defendant, Edmund Clark, from a judgment of the County Court .of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of April, 1908, upon the decision of the court rendered after a trial before the court without a jury. This suit is by the mortgagee to foreclose a bond and mortgage for principal and interest. The mortgage was for $11,650, and was assigned, by the mortgagee to the Borough Bank as security for thé payment of a loan of $6,000. The said bank was placed in the hands of receivers before the commencement of this…
1Opinion of the Court
Gaynor, J.:
The appeal is on the judgment roll only. Although the assignment was absolute on its face, it was in fact only as collateral security for a debt of $6,000. If it. were an' absolute assignment, the election to treat the principal as due on the default to pay interest, as the terms of the bond and mortgage permitted (and also the suit to foreclose) would of course have to be by the assignee, but being an assignment only pro tanto, the assignor and the assignee were in equity joint owners of the bond and mortgage, and the election could not be made by the assignor alone; the assignee…
2Cases cited5 opinions
- Kortright v. . CadyNew York Court of Appeals · 1860
- Shaw v. WellmanNew York Supreme Court · 1891
- Pizer v. HerzigAppellate Division of the Supreme Court of the State of New York · 1907
- Hothorn v. LouisAppellate Division of the Supreme Court of the State of New York · 1900
- Hothorn v. . LouisNew York Court of Appeals · 1902
3Cited by17 opinions
- Albertina Realty Co. v. Rosbro Realty Corp.New York Court of Appeals · 1932
- 446 West 44th Street Inc. v. Riverland Holding Corp.Appellate Division of the Supreme Court of the State of New York · 1943
- Harrison v. BealsOregon Supreme Court · 1924
- Kline v. 275 Madison Avenue Corp.New York Supreme Court · 1933
- Corporate Investing Co. v. Gracehull Realty Co.Appellate Division of the Supreme Court of the State of New York · 1913
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