Gottlieb v. City of New York

Appellate Division of the Supreme Court of New York

Gottlieb v. City of New York

128 A.D. 148, 112 N.Y.S. 545, 1908 N.Y. App. Div. LEXIS 404

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

DecidedOctober 16, 1908

StatusPublished

Cited by2 cases

This text of 128 A.D. 148 (Gottlieb v. City of New York) 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

Gottlieb v. City of New York, 128 A.D. 148, 112 N.Y.S. 545, 1908 N.Y. App. Div. LEXIS 404 (N.Y. Ct. App. 1908).

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Opinion

Gaynor, J.:

When the town conveyed to the plaintiff it did not own the land, but only a mortgage thereon. The deed of conveyance was without covenants, but it operated to assign the mortgage to the plaintiff, and ■ therefore the foreclosure of the mortgage by the City of New York (the successor of the town) and the purchase by the said city on the foreclosure for the amount due on the mortgage, must be deemed to have been done as trustee for the plaintiff. There seems to be an absence of precise authority in this state that a deed of quit claim, or of right, title and interest, by a mortgagee of the land, at least assigns the mortgage. If the mortgagee should foreclose, and the foreclosure should be- ineffectual to transfer title to the purchaser, it would transfer the mortgage to him (Robinson v. Ryan, 25 N. Y. 320). There seems to be no reason why the same result should not flow from a deed of conveyance of quit claim or without, covenants by the mortgagee, instead of resorting to a foreclosure. That has been held elsewhere (Stark v. Boynton, 167 Mass. 443).

The judgment, and also the order permitting the amendment of the complaint,, should be affirmed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.

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Gaynor, J.:

When the town conveyed to the plaintiff it did not own the land, but only a mortgage thereon. The deed of conveyance was without covenants, but it operated to assign the mortgage to the plaintiff, and ■ therefore the foreclosure of the mortgage by the City of New York (the successor of the town) and the purchase by the said city on the foreclosure for the amount due on the mortgage, must be deemed to have been done as trustee for the plaintiff. There seems to be an absence of precise authority in this state that a deed of quit claim, or of right, title and interest, by a mortgagee of the land, at least assigns the mortgage. If the mortgagee should foreclose, and the foreclosure should be- ineffectual to transfer title to the purchaser, it would transfer the mortgage to him (Robinson v. Ryan, 25 N. Y. 320). There seems to be no reason why the same result should not flow from a deed of conveyance of quit claim or without, covenants by the mortgagee, instead of resorting to a foreclosure. That has been held elsewhere (Stark v. Boynton, 167 Mass. 443).

The judgment, and also the order permitting the amendment of the complaint,, should be affirmed.

Woodward, Hooker, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.

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Bluebook (online)

128 A.D. 148, 112 N.Y.S. 545, 1908 N.Y. App. Div. LEXIS 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gottlieb-v-city-of-new-york-nyappdiv-1908.

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