President & Directors of the Manhattan Co. v. Mosler Safe Co.

246 A.D. 785

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1935
• Status: Published

Opinion

In an action to recover damages for waste committed by the defendant upon premises covered by plaintiff’s mortgage, order and judgment dismissing the complaint on the ground that it failed to state a cause of action reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the defendant to answer the complaint in twenty days after the entry of the order upon this decision. In our opinion, an action may be maintained by plaintiff, as mortgagee of the premises in question, for waste committed by the defendant by which the mortgage security was impaired, without alleging the foreclosure and sale of the mortgaged property or a deficiency judgment. The statement to the contrary in the opinion of this court in Ferraro v. Marrillard Builders, Inc. (227 App. Div. 448) was unnecessary to the decision in that case and does not correctly state the law on the subject. Young, Hagarty, Carswell and Johnston, JJ., concur; Lazansky, P. J., not voting.