Fitch v. . McDowell
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made July 14, 1894, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This was an action for the foreclosure of a mortgage executed by Edward W. McDowell to John H. Whiteside and Timothy Howe, as trustees, and by them assigned to Andrew Williams.
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Appeal from judgment of the General Term of the Supreme Court in the third judicial department, entered upon an order made July 14, 1894, which modified and affirmed as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This was an action for the foreclosure of a mortgage executed by Edward W. McDowell to John H. Whiteside and Timothy Howe, as trustees, and by them assigned to Andrew Williams. In 1886 Williams assigned said mortgage to Jane Ellis, plaintiff’s intestate, as collateral security to the extent of 85,000, which assignment…
1Opinion of the CourtPeckham, J.
We think the General Term made a proper disposition of this case. The transfer of the note by Williams to the defendant bank operated as a payment pro tanto of the mortgage so long' as the note remained in the hands of a third party, and in such condition that the mortgagee could not produce and deliver it up on the trial of the foreclosure action. This principle is decided in Battle v. Coit (26 N. Y. 404). The bank upon taking the note took no interest in or right to the bond and mortgage. The mortgage was not given to secure the payment of the note, and a transfer of the note to the bank…
2Cases cited1 opinion
- Battle v. . CoitNew York Court of Appeals · 1863
3Cited by8 opinions
- Bernstein v. FuerthNew York City Court · 1928
- Kissling v. SkolkinAppellate Division of the Supreme Court of the State of New York · 1939
- Sawyer v. MarmaroNew York Supreme Court · 1929
- Employers' Liability Assur. Corp. v. EckertCourt of Appeals of Texas · 1932
- Mingus v. Employers' Liability Assur. Co.Texas Commission of Appeals · 1933
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