Emigrant Industrial Savings Bank v. Clute

New York Court of Appeals

Emigrant Industrial Savings Bank v. Clute

2 Silv. Ct. App. 340, 24 N.Y. St. Rep. 509

DecidedJune 4, 1889

StatusPublished

This text of 2 Silv. Ct. App. 340 (Emigrant Industrial Savings Bank v. Clute) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Emigrant Industrial Savings Bank v. Clute, 2 Silv. Ct. App. 340, 24 N.Y. St. Rep. 509 (N.Y. 1889).

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Opinion

Per Curiam.

The judgment in Clute v. Emmerich (99 N. Y. 342) is decisive of this case. It was there held that-the title of Isabella B. Clute was subject to the plaintiff’s morgtage. There is no merit in the point that the complaint is insufficient to authorize a judgment cancelling the record of the discharge of the mortgage from Hale to Chamberlain, restoring the lien of the mortgage, and directing its foreclosure. The plaintiff alleges in its complaint the consideration upon which that mortgage was given, its cancellation, that the money with which it was paid was borrowed. [341]*341upon the mortgage given by Hyde to the Pearsalls, and that the mortgage from Hyde to the Pearsalls was subsequently paid and cancelled by money borrowed of the plaintiff upon its mortgage; and very clearly indicates that the plaintiff is entitled to be subrogated to the rights of Chamberlain under the first mortgage. Several exceptions to the refusal of the court to find certain facts requested, pursuant to section 1023 of the Code of Civil Procedure, are discussed, but all of them are subordinate to the main question, which has been determined by the court of appeals, and would be unavailing, if found in the appellant’s favor; besides, the case does not show that it contains all of the evidence, or all bearing upon the propositions which the appellant requested the trial court to find.

The judgment should be affirmed, with costs.

All concur, except Parker and Brown JJ., dissenting.

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Per Curiam.

The judgment in Clute v. Emmerich (99 N. Y. 342) is decisive of this case. It was there held that-the title of Isabella B. Clute was subject to the plaintiff’s morgtage. There is no merit in the point that the complaint is insufficient to authorize a judgment cancelling the record of the discharge of the mortgage from Hale to Chamberlain, restoring the lien of the mortgage, and directing its foreclosure. The plaintiff alleges in its complaint the consideration upon which that mortgage was given, its cancellation, that the money with which it was paid was borrowed. [341]*341upon the mortgage given by Hyde to the Pearsalls, and that the mortgage from Hyde to the Pearsalls was subsequently paid and cancelled by money borrowed of the plaintiff upon its mortgage; and very clearly indicates that the plaintiff is entitled to be subrogated to the rights of Chamberlain under the first mortgage. Several exceptions to the refusal of the court to find certain facts requested, pursuant to section 1023 of the Code of Civil Procedure, are discussed, but all of them are subordinate to the main question, which has been determined by the court of appeals, and would be unavailing, if found in the appellant’s favor; besides, the case does not show that it contains all of the evidence, or all bearing upon the propositions which the appellant requested the trial court to find.

The judgment should be affirmed, with costs.

All concur, except Parker and Brown JJ., dissenting.

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2 Silv. Ct. App. 340, 24 N.Y. St. Rep. 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emigrant-industrial-savings-bank-v-clute-ny-1889.

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