Preston v. Arthur — 105 N.Y.S. 36

Majority

p. 36

(120 App. Div. 93)

PRESTON v. ARTHUR et al.

(No. 3.)

(Supreme Court, Appellate Division, First Department.

June 7, 1907.)

Headnote

Building and Loan Associations—Mortgages—Foreclosure—Suit by Receiver.

Where, in a suit by the receiver of a building association to foreclose a mortgage of a borrowing member, the mortgage and bond, though executed and acknowledged, were excluded, a judgment of dismissal must be reversed.

Appeal from Judgment on Report of Referee.

Action by Charles M. Preston, as receiver of the New York Building Loan Banking Company, against Mary E. Arthur and others. Prom a judgment entered on the report of a referee, dismissing the complaint, plaintiff appeals.

Reversed, and new trial ordered.

Argued before INGRAHAM, LAUGHLIN, CLARICE, SCOTT, and LAMBERT, JJ.

Charles W. Dayton, Jr., for appellant.

Alexander Thain (Helen Arthur, on the brief), for respondent Arthur.

C. R. & G. F. Allison (Samuel R. Taylor, of counsel), for respondents Albee.

This case was tried before the same referee and at the same time as that of Preston v. Albee (action No. 2, opinion filed

p. 37

herewith) 105 N. Y. Supp. 33 , and presented the same character of case; the mortgage in suit being upon the house adjacent to the premises under foreclosure in action No. 2.

In action No. 2 the referee admitted all the documentary evidence and then dismissed the complaint. In the case under consideration he excluded all of the documentary evidence, including the mortgage sued on, although acknowledged and recorded, and the bond, although executed and acknowledged; the only document which he did receive being a copy of the articles of incorporation of the company. All of this evidence having been excluded, the plaintiff rested, whereupon the referee dismissed the complaint and made findings of fact which were identical with those made by him in action No. 2. Pie found, however, “that the plaintiff duly established by proof the appointment and qualification of Charles M. Preston as receiver of the New York Building Loan Banking. Company,” although he had excluded the certified copy of the judgment against the company appointing Preston receiver and a certified copy of the bond given by Preston as such receiver. Such a judgment cannot stand.

It is therefore reversed, and a new trial ordered before another referee, with costs to the appellant to abide the event. All concur.