Schaaf v. O'Brien
New York Court of Common Pleas
Appeal by the defendant from a judgment of this court, entered on a decision at trial term. The action was brought by the assignee of a bond, (secured by a mortgage on real estate) upon a guarantee of its payment made by defendant’s testator, the assignor and mortgagee, and contained in the assignment.
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Appeal by the defendant from a judgment of this court, entered on a decision at trial term. The action was brought by the assignee of a bond, (secured by a mortgage on real estate) upon a guarantee of its payment made by defendant’s testator, the assignor and mortgagee, and contained in the assignment. Upon the trial, leave was asked to amend the answer by setting up as a defense, that before bringing the action upon the guaranty plaintiff had commenced an action for the foreclosure of the mortgage; that a receiver of rents and profits had been appointed, had acted and had not accounted; and…
1Opinion of the Court
Charles P. Daly, Chief Justice.
In an action by the mortgagee upon the bond he would have to show that he had exhausted the mortgage security, as his remedy upon the bond would be for any deficiency that might remain after exhausting the mortgage security. But the defendant’s testator assigned the bond to the plaintiff in this suit, and by the instrument of assignment, for a valuable consideration, which was expressed in tl$e instrument, he guaranteed the payment of the bond with interest on or before the 15th of December, 1876, and the action is upon the guaranty. The fact, therefore, that…
2Cases cited4 opinions
- Curtis v. TylerNew York Court of Chancery · 1842
- Suydam v. BartleNew York Court of Chancery · 1841
- Williamson v. ChamplinNew York Court of Chancery · 1839
- Baxter v. SmackNew York Supreme Court · 1859