Peoples National Bank & Trust Co. v. Harkay Realty Co.

258 A.D. 964, 16 N.Y.S.2d 779, 1940 N.Y. App. Div. LEXIS 8448

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 2, 1940
• Status: Published

Opinion

— Two of several defendants in two actions to foreclose mortgages on real property appeal from orders striking out then- answers, which were, in effect, counterclaims. In each case, order affirmed, with ten dollars costs and disbursements. Appellants in each case sought to compel plaintiff, the lender-mortgagee under a building-loan agreement and mortgage, to make advances after the mortgagor was in default under the terms of the agreement and mortgage, in order that such advances might be applied to the payment of liens filed by appellants after earlier advances had been made. Under subdivisions 2 and 3 of section 13, and section 22, of the Lien Law (Consol. Laws, chap. 33), and under the agreement and mortgage in each case, which relieved the lender from making advances after default, appellants do not present grounds for relief. Cerasole v. Egenberger (273 N. Y. 351), upon which appellants rely, has no application here. Therein the question of priority between the lien of a building-loan mortgage and mechanics’ liens filed after advances were made was not involved. In that ease the lender made a separate agreement with lienors, for a good consideration, to advance the full amount of the loan without regard to default. Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.