Clifton v. Fox

Appellate Division of the Supreme Court of New York

Clifton v. Fox

263 A.D. 738, 31 N.Y.S.2d 18, 1941 N.Y. App. Div. LEXIS 4780

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 24, 1941

StatusPublished

This text of 263 A.D. 738 (Clifton v. Fox) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Clifton v. Fox, 263 A.D. 738, 31 N.Y.S.2d 18, 1941 N.Y. App. Div. LEXIS 4780 (N.Y. Ct. App. 1941).

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Opinion

Action to recover on a guaranty of payment of certain bonds secured by a mortgage on real property. The trial court decided the mortgage was merged in the title of the bondholders’ committee, relieving the guarantor from liability. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. The facts do not disclose there was such a merger. On the new trial the defenses pleaded will also be disposed of. [739]*739Lazansky, P. J., Hagarty and Carswell, JJ., concur; Adel and Close, JJ., dissent and vote to affirm, with the following memorandum: There is ample evidence in the record to support the finding by the trial court that there is union of title of the mortgagor and mortgagee in the mortgage. The fact that the record title is in the name of Heathcote Plaza Corporation does not affect that conclusion. The attorney for the bondholders’ protective committee, who organized the corporation, testified that the property is now held by it for the bondholders. It is apparent that the corporation was organised for that purpose as a subterfuge to deprive the defendant of the benefits of the mortgage moratorium statutes.

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Action to recover on a guaranty of payment of certain bonds secured by a mortgage on real property. The trial court decided the mortgage was merged in the title of the bondholders’ committee, relieving the guarantor from liability. Judgment reversed on the law and a new trial granted, with costs to appellants to abide the event. The facts do not disclose there was such a merger. On the new trial the defenses pleaded will also be disposed of. [739]*739Lazansky, P. J., Hagarty and Carswell, JJ., concur; Adel and Close, JJ., dissent and vote to affirm, with the following memorandum: There is ample evidence in the record to support the finding by the trial court that there is union of title of the mortgagor and mortgagee in the mortgage. The fact that the record title is in the name of Heathcote Plaza Corporation does not affect that conclusion. The attorney for the bondholders’ protective committee, who organized the corporation, testified that the property is now held by it for the bondholders. It is apparent that the corporation was organised for that purpose as a subterfuge to deprive the defendant of the benefits of the mortgage moratorium statutes.

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Bluebook (online)

263 A.D. 738, 31 N.Y.S.2d 18, 1941 N.Y. App. Div. LEXIS 4780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clifton-v-fox-nyappdiv-1941.