Szerlip v. Crown Enterprises, Inc.

277 A.D.2d 1060

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 27, 1950
• Status: Published

Opinion

Action to restrain foreclosure of a chattel mortgage. Judgment declaring that Moss Industries, Inc., was indebted to Crown Enterprises, Inc., in the sum of $23,479.96, and allowing an offset therefrom to the debtor in the sum of $15,000, modified on the law and the facts by striking therefrom the second and third subdivisions of the first ordering paragraph; by providing that the amount properly due upon the chattel mortgage is the sum of $23,479.96, with interest from March 20, 1950, and by substituting such sum in place of the sum of $7,286.52 wherever the latter sum appears in the two final ordering paragraphs. As so modified, the judgment, insofar as appealed from, is unanimously affirmed, with one bill of costs to appellants Crown Enterprises, Inc., and Sidney Brill. The validity of the payment of $15,000 by Moss Industries, Inc., under an agreement executed by that corporation, among others, which was with respect to an indebtedness independent of the loan for which the chattel mortgage was given as security, the subject of the present action, was not an issue to be tried and determined. Its determination involves knowledge and acquiescence of the present plaintiff as well as the other stockholders of Moss Industries, Inc., as well as their interest, if any, in the corporations doing a cosmetics business who were directly obligated to pay the indebtedness of $15,000. That indebtedness having been paid and the agreement with respect thereto having terminated, it was incumbent upon Moss Industries, Inc., if so advised, to commence an independent action to rescind its agreement to pay that obligation and to recover the payment which it made thereunder. In such an action all parties affected thereby can be joined and rendered subject to appropriate judgment, an adjudication which could not be achieved in the present action, which dealt with a different indebtedness. Present — Nolan, P. J., Carswell, Johnston and Sneed, JJ.; MaeCrate, J., not voting. [See 278 App. Div. 578.]