Dickey v. Gortner

Headnote

Dickey v. Gortner, 139 App. Div. 910 , appeal dismissed.

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 6, 1909, affirming a judgment in favor of defendant entered upon the report of a referee. The plaintiff alleged that he had conveyed a parcel of land in Brooklyn to defendant upon an agreement that defendant should rent and manage the same, should apply the rent

towards paying off a mortgage upon the property, should make advances necessary for the management of the property and should reconvey upon receiving payment for his advances. Judgment was demanded for an accounting and that the defendant should reconvey upon the payment of any amount found due to him. The answer alleged sundry advances made by the defendant for paying interest on the mortgage for taxes and keeping the property in tenantable condition, and concluded with a prayer for general relief. The reply admitted that defendant had submitted a statement of his claims' upon the property and had offered to reconvey upon being paid the amount thereof. The trial court adjudged that the defendant had a mortgage upon the premises for the amount which should be found due him, and ordered a reference to compute the amount. It was further adjudged that if the plaintiff within thirty days after the service of notice of an order for the confirmation of the referee’s report should pay the amount found due, the defendant should reconvey to the plaintiff. Otherwise judgment of foreclosure and sale was ordered. The report of the referee was thereafter duly confirmed, plaintiff failed to pay the amount found due and thereupon final judgment was entered that the property be sold to pay the amount due defendant.