Lopin v. Hewes Holding Corp.

Appellate Division of the Supreme Court of New York

Lopin v. Hewes Holding Corp.

247 A.D. 100, 286 N.Y.S. 182, 1936 N.Y. App. Div. LEXIS 8190

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

DecidedMarch 13, 1936

StatusPublished

This text of 247 A.D. 100 (Lopin v. Hewes Holding Corp.) 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

Lopin v. Hewes Holding Corp., 247 A.D. 100, 286 N.Y.S. 182, 1936 N.Y. App. Div. LEXIS 8190 (N.Y. Ct. App. 1936).

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Opinions

Per Curiam.

We are of opinion that the result reached by the trial court should be sustained, though not on the grounds indicated by the court.

[101]*101Hermine Frank, the impleaded defendant, was the bona fide owner of the first mortgage on the Brooklyn property referred to as the Lucks mortgage. She assigned that mortgage to the Hewes Holding Corporation for the moneys advanced by that company in the transaction of March 6, 1931, and for such advancement she also subordinated, to the assignment of the award on the First street property, her second mortgage on that property. By reason of that subordination, the Hewes Holding Corporation was repaid in full, from the proceeds of the award, the moneys it had advanced. The judgment debtor’s interest formed no part of such repayment, as the award was insufficient to meet the prior liens, and Miller, the judgment debtor, consequently, had no equity therein. In that state of facts, the impleaded defendant and not the judgment debtor was entitled to the Lucks mortgage, which concededly had been her own property.

The judgment appealed from should be affirmed, with costs to the impleaded defendant-respondent against the plaintiff-appellant.

Untermyer, Dore and Cohn, JJ., concur; Martin, P. J., and O’Malley, J., dissent and vote for reversal.

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Per Curiam.

We are of opinion that the result reached by the trial court should be sustained, though not on the grounds indicated by the court.

[101]*101Hermine Frank, the impleaded defendant, was the bona fide owner of the first mortgage on the Brooklyn property referred to as the Lucks mortgage. She assigned that mortgage to the Hewes Holding Corporation for the moneys advanced by that company in the transaction of March 6, 1931, and for such advancement she also subordinated, to the assignment of the award on the First street property, her second mortgage on that property. By reason of that subordination, the Hewes Holding Corporation was repaid in full, from the proceeds of the award, the moneys it had advanced. The judgment debtor’s interest formed no part of such repayment, as the award was insufficient to meet the prior liens, and Miller, the judgment debtor, consequently, had no equity therein. In that state of facts, the impleaded defendant and not the judgment debtor was entitled to the Lucks mortgage, which concededly had been her own property.

The judgment appealed from should be affirmed, with costs to the impleaded defendant-respondent against the plaintiff-appellant.

Untermyer, Dore and Cohn, JJ., concur; Martin, P. J., and O’Malley, J., dissent and vote for reversal.

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Bluebook (online)

247 A.D. 100, 286 N.Y.S. 182, 1936 N.Y. App. Div. LEXIS 8190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopin-v-hewes-holding-corp-nyappdiv-1936.