Statewide Savings & Loan Ass'n v. Canoe Hill, Inc.

378 N.E.2d 118, 44 N.Y.2d 843, 44 N.Y. 843, 406 N.Y.S.2d 755, 1978 N.Y. LEXIS 2040

• Court: New York Court of Appeals
• Decided: May 11, 1978
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

In this case, where the parties are the original mortgagor and mortgagee, any intention to include the personalty within the embrace of the mortgage by its omnibus reference to "all the fixtures and articles of personal property, now or hereafter attached to or used in connection with the premises” is negated by the simultaneous execution of the separate security agreement covering "Furniture * * * and all equipment * * * owned by the debtor for use in connection with the maintenance and upkeep of the golf club and golf course” (cf. General Synod of Reformed Church v Bonac Realty Corp., 297 NY 119; East Riv. Sav. Bank v 671 Prospect Ave. Holding Corp., 280 NY 342). Consistently, the complaint did not allege that the mortgage covered the personal property, the referee’s notice of sale on foreclosure did not enumerate it, the auctioneer did not offer it and the referee’s report was completely silent on the subject.

Accordingly, the order should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.