Badger v. Sutton — 53 N.Y.S. 1099

Majority

p. 1099

BADGER et al., Plaintiffs, v. SUTTON et al., Defendants. In re FLETCHER.

(Supreme Court, Appellate Division, Second Department.

July 23, 1898.)

Headnote

Action by Theodore Badger and Willard Winslow against Charles T. Sutton and others. In the matter of the application of Austin B. Fletcher, receiver, appointed in the above-entitled action, for a determination of the rights of the respective persons claiming liens upon the real estate in his hands as receiver under the judgment in the above-entitled action. Motion for reargument. Denied. For former opinion,

see 52 N. Y. Supp. 16 .

John J. McKelvey, for appellants.

Wilson Brown, Jr., for respondents.

The counsel for appellants seeks by this application to obtain a modification of our former decision, that the receiver hold the 112 bonds as a lien against the mortgaged premises to the extent of the personal property received by the defendant corporation, and not returned to the receiver. He asks us to decree that the said bonds be held also as indemnity for and to the extent of the incumbrances placed by the defendant company on the real estate transferred to it. We are of opinion that we cannot grant the appellant this relief. The conveyance of the real estate and the transfer of the personal property were separate transactions, or at least there is nothing in the record before us to show that they are component parts of the same transaction. Prior to the conveyance and transfer to the J. W. Young & Sons Company, the real estate and personal property belonged to different owners, the real estate being the property of J. W. Young individually, while the stock in trade was the property of the firm of J. W. Young & Sons. The opinion heretofore delivered by us is in error in stating that the realty belonged to the firm. As there were different ownerships of the different properties transferred, we do not see how the bonds given in payment of one can be held as an indemnity for the failure to return the other property unincumbered. The motion for reargument must therefore be denied. We do not find in the record the assertion of the respondents’ counsel that the real estate transferred by the Tuckahoe Lumber & Coal Company was at the time of its transfer subject to a mortgage of $5,500. We are therefore of opinion that in settling the order to be entered upon our decision it will be wiser to omit any provision for the release of the real estate conveyed by that company from the lien of the general mortgage and the surrender of the .bonds given in payment of it. All concur-