Finnegan v. Brown

Appellate Division of the Supreme Court of New York

Finnegan v. Brown

43 A.D.2d 812, 350 N.Y.S.2d 830, 1973 N.Y. App. Div. LEXIS 2916

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

DecidedDecember 13, 1973

StatusPublished

Cited by5 cases

This text of 43 A.D.2d 812 (Finnegan v. Brown) 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

Finnegan v. Brown, 43 A.D.2d 812, 350 N.Y.S.2d 830, 1973 N.Y. App. Div. LEXIS 2916 (N.Y. Ct. App. 1973).

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Opinion

Order unanimously reversed, with costs and motion denied. Memorandum: Special Term dismissed appellants’ complaint and vacated a lis pendens upon their property at 165 Columbus Avenue in Buffalo despite appellants’ argument that the deed they gave to respondent, the attorney who prepared the agreement of sale, was only to serve as security for a loan to appellants to avoid foreclosure upon their home. This was error. The record reveals that the equity which respondent purchased for $1,873 was worth from $5,000 to [813]*813$10,000, depending upon whose appraisal figures are used. In any ease, such disparity could point to something other than a sale of these premises (38 N Y Jur., Mortgages and Deeds of Trust, § 26). As we held King v. WNY Holding Corp. (38 A D 2d 685): “ Whether a deed, absolute on its face, is a mortgage depends upon the intent of the parties (Matter of Newcourt Realty Holding Corp. v. Gabel, 28 A D 2d 704; Real Property Law, § 320) and, as such, presents a question of fact requiring a trial”. (Appeal from order of Erie Special Term dismissing complaint and vacating lis pendens.) Present — Goldman, P. J., Moule, Cardamone, Simons and Henry, JJ.

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Order unanimously reversed, with costs and motion denied. Memorandum: Special Term dismissed appellants’ complaint and vacated a lis pendens upon their property at 165 Columbus Avenue in Buffalo despite appellants’ argument that the deed they gave to respondent, the attorney who prepared the agreement of sale, was only to serve as security for a loan to appellants to avoid foreclosure upon their home. This was error. The record reveals that the equity which respondent purchased for $1,873 was worth from $5,000 to [813]*813$10,000, depending upon whose appraisal figures are used. In any ease, such disparity could point to something other than a sale of these premises (38 N Y Jur., Mortgages and Deeds of Trust, § 26). As we held King v. WNY Holding Corp. (38 A D 2d 685): “ Whether a deed, absolute on its face, is a mortgage depends upon the intent of the parties (Matter of Newcourt Realty Holding Corp. v. Gabel, 28 A D 2d 704; Real Property Law, § 320) and, as such, presents a question of fact requiring a trial”. (Appeal from order of Erie Special Term dismissing complaint and vacating lis pendens.) Present — Goldman, P. J., Moule, Cardamone, Simons and Henry, JJ.

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Bluebook (online)

43 A.D.2d 812, 350 N.Y.S.2d 830, 1973 N.Y. App. Div. LEXIS 2916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finnegan-v-brown-nyappdiv-1973.

Opinion

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