Taylor v. Dutcher

Appellate Division of the Supreme Court of New York

Taylor v. Dutcher

69 N.Y.S. 951

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 1901

StatusPublished

Cited by1 cases

This text of 69 N.Y.S. 951 (Taylor v. Dutcher) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Taylor v. Dutcher, 69 N.Y.S. 951 (N.Y. Ct. App. 1901).

Pincite

Opinion

JERKS, J.

This is an appeal from an order of the special term confirming the report of a referee in surplus proceedings supplemental to a sale of the premises of Dutcher under foreclosure of his mortgage to Taylor for $5,000. There are three claimants, of whom only Mr. Lawrence appeals. His claim is based upon a mechanic’s lien for $605, filed July 28, 1898. In October, 1898, Mr. Lawrence’s firm and George I. Roberts & Bros., Incorporated, executed and delivered to Dutcher the following:

“We, the undersigned, creditors of and lienors against Charles W. Dutcher and his building at Tuckahoe, hereby severally agree and consent that John D. Taylor may, notwithstanding our respective liens, or any others heretofore given by Mr. Dutcher to us, or any of us, pay and distribute the balance to the credit of said Dutcher upon the bond and mortgage of said Dutcher to said Taylor, to wit, the sum of $935, as follows: $500 to Lawrence Bros., $.175 to Lawrence and Conklin, $200 to Roberts Bros.; and that upon said payments respectively we will execute proper satisfactions of our respective liens, and deliver the same to said Dutcher, and relinquish all claim against said Taylor.”

There is no dispute that the $500 was paid to Mr. Lawrence. Subsequent thereto these foreclosure proceedings were begun. The learned referee found that the execution and performance prevented Mr. Lawrence from making any claim as a lienor in these proceedings. The surplus moneys stand in the place of the land, and the right of [952]*952the appellant to share therein must be founded upon some lien thereon existing at the time of the sale. Ellis v. Salomon, 57 App. Div. 118, 67 N. Y. Supp. 1025, and cases cited. There is evidence to sustain the finding of the referee, no such preponderance thereof as would justify a reversal upon the facts, while his conclusion is, I think, warranted by the law7. I think that when Hr. Lawrence executed the consent and accepted the payment provided for he ceased to have status as a lienor, and that, therefore, he cannot be heard as a claimant to the surplus.

The order is affirmed, with $10 costs and disbursements. All concur.

Free access — add to your briefcase to read the full text and ask questions with AI

JERKS, J.

This is an appeal from an order of the special term confirming the report of a referee in surplus proceedings supplemental to a sale of the premises of Dutcher under foreclosure of his mortgage to Taylor for $5,000. There are three claimants, of whom only Mr. Lawrence appeals. His claim is based upon a mechanic’s lien for $605, filed July 28, 1898. In October, 1898, Mr. Lawrence’s firm and George I. Roberts & Bros., Incorporated, executed and delivered to Dutcher the following:

“We, the undersigned, creditors of and lienors against Charles W. Dutcher and his building at Tuckahoe, hereby severally agree and consent that John D. Taylor may, notwithstanding our respective liens, or any others heretofore given by Mr. Dutcher to us, or any of us, pay and distribute the balance to the credit of said Dutcher upon the bond and mortgage of said Dutcher to said Taylor, to wit, the sum of $935, as follows: $500 to Lawrence Bros., $.175 to Lawrence and Conklin, $200 to Roberts Bros.; and that upon said payments respectively we will execute proper satisfactions of our respective liens, and deliver the same to said Dutcher, and relinquish all claim against said Taylor.”

There is no dispute that the $500 was paid to Mr. Lawrence. Subsequent thereto these foreclosure proceedings were begun. The learned referee found that the execution and performance prevented Mr. Lawrence from making any claim as a lienor in these proceedings. The surplus moneys stand in the place of the land, and the right of [952]*952the appellant to share therein must be founded upon some lien thereon existing at the time of the sale. Ellis v. Salomon, 57 App. Div. 118, 67 N. Y. Supp. 1025, and cases cited. There is evidence to sustain the finding of the referee, no such preponderance thereof as would justify a reversal upon the facts, while his conclusion is, I think, warranted by the law7. I think that when Hr. Lawrence executed the consent and accepted the payment provided for he ceased to have status as a lienor, and that, therefore, he cannot be heard as a claimant to the surplus.

The order is affirmed, with $10 costs and disbursements. All concur.

Cite This Page — Counsel Stack

Bluebook (online)

69 N.Y.S. 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-dutcher-nyappdiv-1901.

Opinion

Related

Cite This Page — Counsel Stack