Maidment v. Newbridge Properties, Inc.

269 A.D. 696, 53 N.Y.S.2d 581, 1945 N.Y. App. Div. LEXIS 3351

Opinion

In an action to foreclose a mortgage, the appealing defendants assert that the lien of the mortgage is subject to easements created by restrictive covenants set forth in deeds of conveyance made by the mortgagor after the making and recording of the mortgage. Order of reference and judgment of the County Court, Hassau County, in favor of plaintiff unanimously affirmed, with costs. That part of finding of fact Ho. 3 following the word “ consideration ” is reversed and not made. The lien of the mortgage is entitled to lawful priority, and there is no equitable estoppel operating against its enforcement. The trial court correctly held that proof of notice to the mortgagees of the covenants and restrictions would not be ground for changing his decision; but inasmuch as the tender of proof of notice was rejected, so much of finding of fact Ho. 3 as is above reversed should not have been made. If the facts in Schwab V. Whitmore, Rauber & Vicinus Co., Inc. (245 App. Div. 174) are not distinguishable, that decision will not be followed. Present — Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ.