In re the Estate of Oster

258 A.D. 930, 16 N.Y.S.2d 612, 1939 N.Y. App. Div. LEXIS 7615

Opinion

Decree so far as appealed from affirmed, with costs. Appeal from the decision dismissed,. Memorandum: When the decedent Oster conveyed the property to Mabel D:. Harper and she assumed and agreed to pay the mortgage, Mabel D. Harper became) the principal debtor and decedent became surety. As surety the decedent had the' right of subrogation. Upon payment of the deficiency judgment he was entitled1, to be subrogated to the rights of the claimants and to an assignment of the judgment against Mabel D. Harper. Claimants had knowledge that Mabel D. Harper' had assumed and agreed to pay the mortgage. When claimants released Mabel D. Harper from the judgment and satisfied the judgment as against her they destroyed Osier’s right of subrogation and he thereupon became discharged from, liability to claimants. (Wagoner v. Brady, 221 App. Div. 405; Germania Life Ins.. Co. v. Casey, 98 id. 88; Calvo v. Davies, 73 N. Y. 211; Paine v. Jones, 76 id. 274; Murray v. Marshall, 94 id. 611.) All concur. (The portion of the decree appealed', from dismisses a claim against an estate to recover the amount of a deficiency" judgment in a foreclosure action.) Present — Sears, P. J., Crosby, Cunningham,, Taylor and Dowling, JJ.