Industrial Bank of Commerce v. Springer

Appellate Terms of the Supreme Court of New York

Industrial Bank of Commerce v. Springer

188 Misc. 247, 67 N.Y.S.2d 626, 1947 N.Y. Misc. LEXIS 1994

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 2, 1947

StatusPublished

This text of 188 Misc. 247 (Industrial Bank of Commerce v. Springer) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Industrial Bank of Commerce v. Springer, 188 Misc. 247, 67 N.Y.S.2d 626, 1947 N.Y. Misc. LEXIS 1994 (N.Y. Ct. App. 1947).

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Opinions

Hecht, J.

Plaintiff sues to recover on a bond. The bond was given by defendant in 1931 and secured by a second mortgage on real property. Defendant interposed an affirmative defense of Statute of Limitations and summary judgment was granted on that defense.

It appears that defendant defaulted in payments on the bond on April 2,1934. In 1936, the first mortgagee obtained a judgment of foreclosure in an action in which plaintiff here was a party defendant. Prior to September 1, 1938, the Statute of Limitations in an action on a sealed instrument was twenty years (Civ. Prac. Act, § 47). On that date new section 47-a was added to the Civil Practice Act (L. 1938, ch. 499) providing that “ An action upon a bond, the payment of which is secured by a mortgage on real property * * * must be commenced [248]*248within six years after the canse of action has accrued. ” Defendant claims that section 47-a is applicable and since on September 1, 1938, more than six years had run before this obligation was barred, September 1, 1944, became the limitation day.

On September 1, 1938, plaintiff did not have a bond secured by a mortgage on real estate and, therefore, the period of limitation on the debt is fixed by section 47, which since the amendment of 1941 only barred this action after September 1, 1947 (L. 1941, ch. 329). When a mortgage is foreclosed, the lien on the land is extinguished (Sautter v. Frick, 229 App. Div. 345). A subsequent action on the bond is not on an indebtedness secured by a mortgage on real property (Weisel v. Hagdahl Realty Co., Inc., 241 App. Div. 314, 318). Where an obligor on a bond sought to defeat an action on the bond after condemnation, the court ruled out a defense based on the moratorium law. (Bank of New York v. Kennedy, 183 Misc. 819.) In that case the court was considering section 1083-b of the Civil Practice Act which protects obligors on bonds secured by mortgages. Section 47-a refers to a bond secured by a mortgage, the same subject matter as covered by section 1083-b. The reasoning applied by the above-cited cases as to the application of the moratorium law is apposite. Section 47 and not section 47-a provides the appropriate period of limitation.

The judgment and order should be reversed and motion denied, with $10 costs.

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Hecht, J.

Plaintiff sues to recover on a bond. The bond was given by defendant in 1931 and secured by a second mortgage on real property. Defendant interposed an affirmative defense of Statute of Limitations and summary judgment was granted on that defense.

It appears that defendant defaulted in payments on the bond on April 2,1934. In 1936, the first mortgagee obtained a judgment of foreclosure in an action in which plaintiff here was a party defendant. Prior to September 1, 1938, the Statute of Limitations in an action on a sealed instrument was twenty years (Civ. Prac. Act, § 47). On that date new section 47-a was added to the Civil Practice Act (L. 1938, ch. 499) providing that “ An action upon a bond, the payment of which is secured by a mortgage on real property * * * must be commenced [248]*248within six years after the canse of action has accrued. ” Defendant claims that section 47-a is applicable and since on September 1, 1938, more than six years had run before this obligation was barred, September 1, 1944, became the limitation day.

On September 1, 1938, plaintiff did not have a bond secured by a mortgage on real estate and, therefore, the period of limitation on the debt is fixed by section 47, which since the amendment of 1941 only barred this action after September 1, 1947 (L. 1941, ch. 329). When a mortgage is foreclosed, the lien on the land is extinguished (Sautter v. Frick, 229 App. Div. 345). A subsequent action on the bond is not on an indebtedness secured by a mortgage on real property (Weisel v. Hagdahl Realty Co., Inc., 241 App. Div. 314, 318). Where an obligor on a bond sought to defeat an action on the bond after condemnation, the court ruled out a defense based on the moratorium law. (Bank of New York v. Kennedy, 183 Misc. 819.) In that case the court was considering section 1083-b of the Civil Practice Act which protects obligors on bonds secured by mortgages. Section 47-a refers to a bond secured by a mortgage, the same subject matter as covered by section 1083-b. The reasoning applied by the above-cited cases as to the application of the moratorium law is apposite. Section 47 and not section 47-a provides the appropriate period of limitation.

The judgment and order should be reversed and motion denied, with $10 costs.

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Bluebook (online)

188 Misc. 247, 67 N.Y.S.2d 626, 1947 N.Y. Misc. LEXIS 1994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-bank-of-commerce-v-springer-nyappterm-1947.

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