Colgan v. Dunne
New York Supreme Court
Appeal from circuit court, Kings county. Jane Colgan, administratrix of the estate of Anthony Davin, .deceased, brought this action against Patrick Dunne and others, legatees under the will of Michael Dunne, deceased, to recover the amount of a deficiency judgment rendered upon the foreclosure of a mortgage executed by said Michael Dunne. The bond and mortgage were dated August 17,1865, and due three years from date.
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Appeal from circuit court, Kings county. Jane Colgan, administratrix of the estate of Anthony Davin, .deceased, brought this action against Patrick Dunne and others, legatees under the will of Michael Dunne, deceased, to recover the amount of a deficiency judgment rendered upon the foreclosure of a mortgage executed by said Michael Dunne. The bond and mortgage were dated August 17,1865, and due three years from date. The deficiency judgment was rendered December 5, 1882, and this action was commenced in December, 1885. Judgment for plaintiff, and defendants appeal.
1Opinion of the CourtPratt, J.
Appellant contends that the action is not based upon a sealed instrument, but upon the statute liability created by sections 1837-1841, Code Civil Proc., and that it accrued in 1872, when the estate was distributed, and that it is barred by the six-year or by the ten-year limitation. We think the right to pursue the legatee for the debt of the testator exists independent of the statute. Courts of law and courts of equity have from the earliest times sustained the creditor’s right to satisfaction of his debt from the assets of testator in the hands of the -legatee. Bract. Bom. Law, bk. 2, c…
2Cases cited1 opinion
- Watkins v. Lessee of HolmanSupreme Court of the United States · 1842
3Cited by13 opinions
- Brooklyn Savings Bank v. Wechsler EstateNew York Court of Appeals · 1932
- Kerr v. SchremppAppellate Court of Illinois · 1945
- Hamlin v. SmithAppellate Division of the Supreme Court of the State of New York · 1902
- Claim of Dusenbery v. BraggAppellate Division of the Supreme Court of the State of New York · 1934
- Wicks v. CarmichaelNew York Supreme Court · 1939
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