Hellawell v. Baer

249 A.D. 641, 292 N.Y.S. 85, 1936 N.Y. App. Div. LEXIS 5354

Opinion

Motion for reargument of appeal or in the alternative for leave to appeal to the Court of Appeals from the decision of this court as to the order of July 31,1936. The motion is denied, without costs. In our opinion the contract sued upon was primarily one to bid on the sale to the end that the bank should not suffer loss. The action is not on the mortgage debt but for damages under a separate agreement; so section 1078 of the Civil Practice Act does not apply. The plaintiff, receiver, can recover only the damages the bank has suffered. It has the property, and the value must be ascertained on the trial and credited against the damages sustained as a result of the breach of the contract. Present — Lazansky, P. J., Hagarty, Carswell, Davis and Johnston, JJ.