Marine Midland National Bank v. Roosa Construction Associates, Inc.

28 A.D.2d 1187, 284 N.Y.S.2d 649, 1967 N.Y. App. Div. LEXIS 2960

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1967
• Status: Published

Opinion

Aulisi, J.

Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J. Herlihy, J. P., concurs in the following memorandum : While an assignment of an interest in a mortgage would not be consistent with an acceptance of a note as a direct payment on principal, it appears that the intention of the parties was that the note only be treated as a forebearance to foreclose on the part of the assignor and that payment by the guarantors would actually he a purchase of the mortgage and debt to the extent of such payment. It would he inequitable to treat the mechanics adopted by the assignor and assignee as a reduction in the mortgage debt and giving effect to their clear intent in no way prejudices any fixed rights of the appellants. Accordingly, the granting of summary judgment allowing simultaneous foreclosure of the assigned part of the mortgage was proper since in reality it was all one mortgage. The remaining contentions of the appellants are without merit and the matters should be affirmed.