Barber v. Cary
New York Supreme Court
This was an action brought by the plaintiff to recover of the defendant the sum of $136,40, being the surplus moneys upon a mortgage sale, received by the defendant’s attorney, and which the plaintiff- claimed as belonging to him. The defendant, by his answer, claimed a right to retain the surplus moneys by virtue of another mortgage for $86,23, upon the same premises, executed by the plaintiff, and which was due and unpaid.
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This was an action brought by the plaintiff to recover of the defendant the sum of $136,40, being the surplus moneys upon a mortgage sale, received by the defendant’s attorney, and which the plaintiff- claimed as belonging to him. The defendant, by his answer, claimed a right to retain the surplus moneys by virtue of another mortgage for $86,23, upon the same premises, executed by the plaintiff, and which was due and unpaid. The cause was tried before Mr. Justice Mason at the Chenango circuit on the 8th April, 1851. On the 4th December, 1846, the plaintiff executed two mortgages on the same…
1Opinion of the Court
By the Court,
Monson, J.
It seems to be a principle well settled, and indeed is not denied by the counsel for the plaintiff, that the defendant was entitled to retain out of the moneys arising on the sale, not only sufficient to satisfy the amount of the installments then due, but also sufficient to satisfy those to become due thereafter on the mortgage foreclosed. (Cox v. Wheeler, 7 Paige, 248.) But why does not that go the length of deciding this claim in favor of the defendant ? What reason can there be for distinguishing between these mortgages, under the circumstances of this case. The…
2Cases cited7 opinions
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- Arnot v. McClureNew York Supreme Court · 1847
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