Manufacturers Trust Co. v. Peck-Schwartz Realty Corp.

Appellate Division of the Supreme Court of New York

Manufacturers Trust Co. v. Peck-Schwartz Realty Corp.

255 A.D. 712, 5 N.Y.S.2d 625, 1938 N.Y. App. Div. LEXIS 4878

Appellate Division of the Supreme Court of the State of New York·Decided July 1, 1938·Published

Opinion

Order of the County Court of Nassau county, in so far as appealed from, awarding respondent an additional allowance of $1,750, reversed on the law, with ten dollars costs and disbursements, and the motion for the additional allowance denied, with ten dollars costs. Under the facts disclosed by this record, it was improper to award an extra allowance. The only issue litigated in the first cause of action for the foreclosure of plaintiff’s mortgage, and upon which respondent was ultimately successful, was whether or not the mortgage also covered the personal property in the mortgaged premises. Under these circumstances, the subject-matter involved, so far as respondent is concerned, was the personal property. As there is no evidence of the value of the personal property, it follows that there was no ascertained value upon which an allowance could be based. Nor can the amount claimed in the second cause of action, which was dismissed at the close of plaintiff’s case, be considered as a basis for the allowance. This cause of action was neither difficult nor extraordinary. Lazansky, P. J., Davis, Johnston, Adel and Close, JJ., concur.

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Order of the County Court of Nassau county, in so far as appealed from, awarding respondent an additional allowance of $1,750, reversed on the law, with ten dollars costs and disbursements, and the motion for the additional allowance denied, with ten dollars costs. Under the facts disclosed by this record, it was improper to award an extra allowance. The only issue litigated in the first cause of action for the foreclosure of plaintiff’s mortgage, and upon which respondent was ultimately successful, was whether or not the mortgage also covered the personal property in the mortgaged premises. Under these circumstances, the subject-matter involved, so far as respondent is concerned, was the personal property. As there is no evidence of the value of the personal property, it follows that there was no ascertained value upon which an allowance could be based. Nor can the amount claimed in the second cause of action, which was dismissed at the close of plaintiff’s case, be considered as a basis for the allowance. This cause of action was neither difficult nor extraordinary. Lazansky, P. J., Davis, Johnston, Adel and Close, JJ., concur.

Manufacturers Trust Co. v. Peck-Schwartz Realty Corp., 255 A.D. 712, 5 N.Y.S.2d 625, 1938 N.Y. App. Div. LEXIS 4878 (N.Y. Ct. App. 1938).

Pincite

255 A.D. 712 (Manufacturers Trust Co. v. Peck-Schwartz Realty Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.