Morrison v. Schmeman

Headnote

Morrison v. Schmeman, 166 App. Div. 264 , affirmed.

Appeal from a judgment, entered February 26, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant, appellant, and defendant Steinberg, entered upon a dismissal of the complaint as to them by the court on trial at Special Term and directing judgment in favor of plaintiff for the relief demanded in the complaint. The action was to foreclose a mortgage made by the defendant Louis Schmeman, upon which there remained unpaid at the time of the commencement of the action the sum of $2,500 and which mortgage affects premises known as 684 East One Hundred and Forty-first street, city of New York. At the time of the delivery of the mortgage there was also delivered a bond executed by the defendant Schmeman. Thereafter the property was conveyed to the defendant Kate Steinberg. Subsequent to the conveyance of the property to her, she entered into an agreement extending the time of payment of the bond and mortgage in suit, and in that agreement she covenanted to pay the mortgage debt. Simultaneously with the execution and delivery of the said extension agreement by the defendant Kate Stein-berg, the defendant Schmeman, and the appellant Feld, by separate instruments, guaranteed the payment of the balance due on said bond and mortgage. The complaint also demanded a deficiency judgment against the defendant Steinberg, by reason of the execution by her of the extension agreement, and against the defendants Feld and Schmeman, by reason of the execution by them of the

agreement of guaranty. The defendants Steinberg and Feld each interposed an answer denying the allegation as to the amount that remained unpaid upon the bond and mortgage, and setting up two separate defenses, the first being to the effect that prior to the commencement of the action, the defendant Schmeman paid and satisfied the bond and mortgage, and the second to the effect that the plaintiff was not the real party in interest.