Zeiser v. Cohn — 144 A.D. 825

Majority

p. 825

John Zeiser, Respondent, v. Sara Oppenheim Cohn, Individually and as Executrix of and Testamentary Trustee under the Last Will and Testament of Mark Cohn, Deceased, and Jennie Hein, Appellants, Impleaded with Jacob Cohn, Defendant.

Third Department,

May 3, 1911.

Headnote

Debtor and creditor — conveyance in consideration of grantee’s promise to pay grantor’s debt — creditor may hold either or both — equitable lien of creditor. .

.Where, in consideration of a conveyance, the grantee agrees to pay the grantor’s debts with interest, a creditor whom the grantee agreed to pay may sue either grantor, or grantee, or both. He is not bound to elect to hold either alone. ■ . ■

The property received by the grantee who promised to pay her grantor’s debts may be charged in equity with the payment of a sum due a creditor whom the grantee agreed to pay, although title has passed to her devisees and part of it is held by the county. treasurer as a surplus remaining after the foreclosure of a mortgage thereon.

Appeal by the defendants, Sara Oppehheim Cohn, individually and as executrix, etc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 22d day of December, 1910, upon the decision of the court rendered after a trial at the Albany Trial Term, a jury having been waived. •

Countryman, Nellis & Dubois [Andrew J, Nellis oí counsel], for the appellant Cohn".

Humboldt M. Schlesinger for the appellant Jennie Hein,

p. 826

Fletcher W. Battershall [Danforth F. Ainsworth and . Charles B. Sullivan of counsel], for the respondent.

We have examined the facts and are satisfied they well sustain the judgment. The plaintiff was not bound to elect whether he would pursue Jacob Cohn alone or Theresa Cohn. Theresa received Jacob’s property and agreed to pay the plaintiff’s .debt, with interest, and the plaintiff could sue either or both. The propriety of the form of action is settled by our former decision. (See 118 App. Div. 9 .13.) The record establishes that the present defendants have certain property which originally passed from Jacob Cohn to Theresa Cohn as- a consideration for her agreement to pay plaintiff’s debt, and that there is with the Albany county treasurer certain surplus moneys which are the proceeds of some of the real estate conveyed by Jacob to Theresa. The parties who are beneficially -interested in said property and moneys take them by representation from Theresa Cohn, and equity may well consider them charged with the payment of plaintiff’s claim. A court of equity does not find it. necessary to name its remedies or the kind of relief which it is administering: It is sufficient to call it equitable relief. Under all the circumstances of this case it is equitable as between the parties to this action that the property and moneys in question should be charged with the plaintiff’s debt. The judgment is, therefore, affirmed, with costs.

All concurred; Smith, P. J., in result.

Judgment unanimously affirmed, with costs.