Neal v. Brown

34 Misc. 759, 71 N.Y.S. 1143

Opinion

Hiscock, J.

Plaintiffs are entitled to the relief demanded in their complaint upon the grounds:

1. The conveyance executed by defendants to plaintiffs September 21, 1899, was a mortgage. See Mooney v. Byrne, 163 N. Y. 86.

2. Ho agreement was made by or in behalf of plaintiffs as claimed by defendants subsequent to the execution of said conveyance that the premises thereby conveyed should be kept and accepted by plaintiffs in payment and satisfaction of their indebtedness against defendants thereby secured. The acts performed by plaintiffs in the way of collecting rents, etc., were properly and naturally performed by them under the circumstances as mortgagees.

3. Ho demand was necessary before the commencement of the action. Finch v. Skilton, 79 Hun, 531; Wheeler v. Warner, 47 N. Y. 519.

4. The action commenced by the defendant Florence L. Brown against these plaintiffs is not a bar to this action. Brown v. Gallaudet, 80 N. Y. 413; Consol. Fruit Jar Co. v. Wisner, 38 App. Div. 369.

The plaintiffs could not obtain in that action to which the other defendant herein was not a party the relief demanded in this action.

Judgment for plaintiffs.