East New York Savings Bank v. Dickey & Lemberg Co.

258 A.D. 889, 16 N.Y.S.2d 43, 1939 N.Y. App. Div. LEXIS 7457

Opinion

In an action brought to foreclose a mortgage on real property, in which appellant-mortgagor set up a defense and counterclaim based upon an alleged agreement by the mortgagee to devote the proceeds of a fire insurance policy to the repair of the mortgaged premises and the payment of arrears of interest and taxes, judgment in favor of plaintiff unanimously affirmed, with costs. The evidence supports the finding of the trial court that no agreement was made of the character alleged in the answer. The mortgagee was entitled under section 254, subdivision 4, of the Real Property Law, to retain the insurance moneys in reduction of the principal of the mortgage. Present —• Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.