Millburn Land Corp. v. Stearns

Appellate Division of the Supreme Court of New York

Millburn Land Corp. v. Stearns

265 A.D. 878, 38 N.Y.S.2d 1, 1942 N.Y. App. Div. LEXIS 6296

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

DecidedNovember 23, 1942

StatusPublished

This text of 265 A.D. 878 (Millburn Land Corp. v. Stearns) 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

Millburn Land Corp. v. Stearns, 265 A.D. 878, 38 N.Y.S.2d 1, 1942 N.Y. App. Div. LEXIS 6296 (N.Y. Ct. App. 1942).

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Opinion

Plaintiff, being the owner of premises subject to the lien of a mortgage held by defendants, seeks in this action to compel defendants to execute and deliver a release of a portion of the mortgaged premises- pursuant to the provisions of a [879]*879release clause contained in the mortgage. Since the aid o£ equity is affirmatively invoked by plaintiff to secure the extinguishment of the mortgage lien upon a portion of the premises, the plaintiff must itself do equity, and the failure of the plaintiff to allege facts showing that the tender has been kept good either by defendants’ acceptance of the tender or by deposit of the release price in court, renders the complaint insufficient in that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action. (Werner v. Tuch, 127 N. Y. 217, 223; Tuthill v. Morris, 81 N. Y. 94; Halpin v. Phenix Ins. Co., 118 N. Y. 165.) Murray v. Harbor & Suburban B. & S. Assn. (91 App. Div. 397; affd., 184 N. Y. 596) cited by the respondent, is not in conflict with these authorities. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.

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Plaintiff, being the owner of premises subject to the lien of a mortgage held by defendants, seeks in this action to compel defendants to execute and deliver a release of a portion of the mortgaged premises- pursuant to the provisions of a [879]*879release clause contained in the mortgage. Since the aid o£ equity is affirmatively invoked by plaintiff to secure the extinguishment of the mortgage lien upon a portion of the premises, the plaintiff must itself do equity, and the failure of the plaintiff to allege facts showing that the tender has been kept good either by defendants’ acceptance of the tender or by deposit of the release price in court, renders the complaint insufficient in that it appears on the face thereof that it does not state facts sufficient to constitute a cause of action. (Werner v. Tuch, 127 N. Y. 217, 223; Tuthill v. Morris, 81 N. Y. 94; Halpin v. Phenix Ins. Co., 118 N. Y. 165.) Murray v. Harbor & Suburban B. & S. Assn. (91 App. Div. 397; affd., 184 N. Y. 596) cited by the respondent, is not in conflict with these authorities. Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur.

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Bluebook (online)

265 A.D. 878, 38 N.Y.S.2d 1, 1942 N.Y. App. Div. LEXIS 6296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millburn-land-corp-v-stearns-nyappdiv-1942.

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