Majority
p. 676John B. Clement et al., as Executors of and Trustees under the Will of William H. Clement, Deceased, Plaintiffs, v. Saratoga Holding Company et al., Defendants. Empire Trust Company, as Trustee, et al., Appellants; William J. Delaney, as Receiver in Bankruptcy of the Saratoga Holding Company, Respondent. (Argued May 4, 1916; decided May 23, 1916.)
Headnote
Clement v. Saratoga Holding Co., 163 App. Div. 927 , affirmed.Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 30, 1914, modifying and affirming as modified interlocutory and final judgments entered upon the report of a referee in an action of partition. The action was brought to partition the Congress Hall property situated at Saratoga Springs, N. Y. The com
p. 677
plaint alleged that plaintiffs and defendant Saratoga Holding Company are each the owners of an undivided one-half interest in this property and that defendant Empire Trust Company is trustee of a mortgage, executed by Saratoga Holding Company for the benefit of the holders of bonds secured by said mortgage, which is a lien on Saratoga Holding Company’s half interest in this property. This mortgage was given to secure an issue of bonds of the par value of $200,000. Of these bonds only $75,000 were issued and certified by the trustee. At the' time of the trial $10,000 of these bonds were owned by Dupre-Bennett Company, $25,000 by Illinois Surety Company, $39,000 by Oarlene A. Way and $1,000 by Joseph A. G-oulden & Son. Subsequent to the commencement of this action defendant Saratoga Holding Company went into bankruptcy and William J. Delaney, its receiver, was made a defendant in the action.
Harry N. Wessel, Edward Herrmann, George D. Zahn and Burt D. Whedon for appellants.
Harold H. Corbin, Walter P. Butler, Charles L. Hoey, David J. Gallert and Walter S. Heilborn for respondent.
Judgment affirmed, with costs; no opinion.
Concur: Willard Bartlett, Ch. J., Chase, Collin, Cuddeback, Cardozo, Seabury and Pound, JJ.