Rutherfurd Realty Co. v. Cook — 191 N.Y. 555

Majority

p. 555

Rutherfurd Realty Company, Respondent, v. Willet F. Cook, Appellant, Impleaded with Another.

Headnote

Rutlierfunl Realty Go. v. Goolc, 118 App. Div. 906 , reversed.

(Argued March 11, 1908;

decided March 31, 1908.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1907, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose certain mortgages.

W. H. Van Steenbergh and Edward Schenk for appellant.

H. H. Snedeker for respondent.

The findings of fact in the decision of the court have been unanimously affirmed by the Appellate Division.

Such findings do not show that the personal obligation of the defendant Cook was assigned to the plaintiff. The other questions discussed are not raised by such findings. The judgment should be reversed and'a new trial granted, with costs to abide the event, unless the plaintiff within twenty days consents to amend the judgment, by striking therefrom that part thereof directing that if the proceeds of the sale of

p. 556

the real property therein described be insufficient to pay the amount due to the plaintiff, with interest and costs, that the defendant Cook pay the same to the plaintiff, and that the plaintiff have execution therefor, in which case the judgment as so amended is affirmed, without costs to either party in this court.

Cullen, Ch. J., Haight, Vann, Werner, Willard Bartlett, Hisoooic and Chase, JJ., concur.

Judgment accordingly.