Kellogg v. . Ames
New York Court of Appeals
Appeal from an order of the Supreme Court in the first judicial district, reversing a judgment for the plaintiff entered upon the decision of Justice Balcom without a jury, and ordering a new trial. The action was for the foreclosure of a mortgage upon certain premises owned hy the defendant, Ames, given by one Philbrook to the Messrs. Butterworth, and purporting to be assigned by them to the plaintiff.
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Appeal from an order of the Supreme Court in the first judicial district, reversing a judgment for the plaintiff entered upon the decision of Justice Balcom without a jury, and ordering a new trial. The action was for the foreclosure of a mortgage upon certain premises owned hy the defendant, Ames, given by one Philbrook to the Messrs. Butterworth, and purporting to be assigned by them to the plaintiff. The following facts were found by Judge Balcom on the trial: 1st. That the defendant, George Philbrook, did execute and deliver to Henry H. Butterworth and Theron H. Butter-worth, for the…
1Opinion of the CourtMurray, J.
On this appeal, this court has only to consider the questions of law raised by the findings of the judge at the trial. Douglass not being a party to the mortgage, his paying the amount thereof to the mortgagees, and taking an assignment thereof, with the intention and electing that it should not be regarded paid or merged, does not extinguish or cancel it. (Champney v. Coope, 32 N. Y. R., 540.)
The appellant took the mortgage, subject to all the equities existing between the mortgagor and Douglass. (Mickles v. Townsend, 18 N. Y. R., 575.) And Douglass having agreed with him to pay the…
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