Pike v. Seiter

New York Supreme Court

Pike v. Seiter

22 N.Y. Sup. Ct. 402

DecidedOctober 15, 1878

StatusPublished

This text of 22 N.Y. Sup. Ct. 402 (Pike v. Seiter) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pike v. Seiter, 22 N.Y. Sup. Ct. 402 (N.Y. Super. Ct. 1878).

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Opinion

Ingalls, P. J.:

On the 20th day of May, 1875, Jonas Schlesinger and Phillip J. Seitcr entered into a written agreement, by which the latter agr*eed to purchase of the former certain premises known as lot [404]*404465 Fourth avenue, in the city of New York, and to pay therefor $34,000, a portion thereof in cash, and the residue by assuming the payment of two mortgages, then being incumbrances upon the same promises, and one of which has been foreclosed in this action. By the direction of Phillip J. Seiter the deed of the premises was executed to his wife by Schlesinger. Upon the trial judgment of foreclosure was directed by the court, and in case there should be a deficiency upon the sale of the premises, it was further adjudged that Phillip J. Seiter should be liable therefor under his covenant to assume the payment of the mortgage. Judgment has been entered in accordance with the decision, and the defendant, Phillip J. Seiter, appeals from the portion of the judgment which declares him liable for the deficiency. The facts clearly show that Phillip J. Seiter purchased the premises, and, as part of the consideration, assumed to pay the mortgage in question. By such arrangement the mortgage debt became his to pay, and his undertaking, based, as it was, upon a valid and adequate consideration, inured to the benefit of the owner of the mortgage. He voluntarily adopted such mode of paying a debt -which he contracted by purchasing the property in question. (Thorp v. The Keokuk Coal Co., 48 N. Y., 253 ; Lawrence v. Fox, 20 id., 268 ; Burr v. Beers, 24 id., 178 ; Barker v. Bradley, 42 id., 316.) The conveyance of the premises to the wife of Seiter, by •his direction, cannot, in our opinion, relieve him from liability by virtue of his covenant, any more than if he had accepted a conveyance to himself, and subsequently vested the title in his wife. (Bennett v. Abrams, 41 Barb., 620.) This being purely an equity-action, the defendant has no absolute right to have any question .involved submitted to the jury; that was matter of discretion with the court to submit or not as it deemed proper.

The judgment should be affirmed, with costs.

Daniels and Potter, JJ., concurred.

Judgment affirmed, with costs.

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Ingalls, P. J.:

On the 20th day of May, 1875, Jonas Schlesinger and Phillip J. Seitcr entered into a written agreement, by which the latter agr*eed to purchase of the former certain premises known as lot [404]*404465 Fourth avenue, in the city of New York, and to pay therefor $34,000, a portion thereof in cash, and the residue by assuming the payment of two mortgages, then being incumbrances upon the same promises, and one of which has been foreclosed in this action. By the direction of Phillip J. Seiter the deed of the premises was executed to his wife by Schlesinger. Upon the trial judgment of foreclosure was directed by the court, and in case there should be a deficiency upon the sale of the premises, it was further adjudged that Phillip J. Seiter should be liable therefor under his covenant to assume the payment of the mortgage. Judgment has been entered in accordance with the decision, and the defendant, Phillip J. Seiter, appeals from the portion of the judgment which declares him liable for the deficiency. The facts clearly show that Phillip J. Seiter purchased the premises, and, as part of the consideration, assumed to pay the mortgage in question. By such arrangement the mortgage debt became his to pay, and his undertaking, based, as it was, upon a valid and adequate consideration, inured to the benefit of the owner of the mortgage. He voluntarily adopted such mode of paying a debt -which he contracted by purchasing the property in question. (Thorp v. The Keokuk Coal Co., 48 N. Y., 253 ; Lawrence v. Fox, 20 id., 268 ; Burr v. Beers, 24 id., 178 ; Barker v. Bradley, 42 id., 316.) The conveyance of the premises to the wife of Seiter, by •his direction, cannot, in our opinion, relieve him from liability by virtue of his covenant, any more than if he had accepted a conveyance to himself, and subsequently vested the title in his wife. (Bennett v. Abrams, 41 Barb., 620.) This being purely an equity-action, the defendant has no absolute right to have any question .involved submitted to the jury; that was matter of discretion with the court to submit or not as it deemed proper.

The judgment should be affirmed, with costs.

Daniels and Potter, JJ., concurred.

Judgment affirmed, with costs.

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