Wallens v. Erie County Savings Bank

Appellate Division of the Supreme Court of New York

Wallens v. Erie County Savings Bank

250 A.D. 821, 294 N.Y.S. 740, 1937 N.Y. App. Div. LEXIS 9129

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

DecidedMarch 10, 1937

StatusPublished

This text of 250 A.D. 821 (Wallens v. Erie County Savings Bank) 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

Wallens v. Erie County Savings Bank, 250 A.D. 821, 294 N.Y.S. 740, 1937 N.Y. App. Div. LEXIS 9129 (N.Y. Ct. App. 1937).

Pincite

Opinion

Judgment affirmed, with costs. All concur, except Sears, P. J., who dissents and votes for reversal on the law and for granting a new trial, in the following memorandum: The assignment of rents, of which a copy, Exhibit “ A ” is annexed to the complaint, was on a form prepared by the defendant for use in cases where the property from which the rents were to be received was covered by a single mortgage. In the present instance the form was evidently for convenience used in relation to two separate parcels each covered by a separate mortgage. Under these circumstances and under general equitable principles, I construe the instrument as though it were two instruments each relating to a single parcel of property. On this fundamental principle the instrument as to each property provides for the application of the rents from each parcel to the carrying charges and arrearages of carrying charges of the particular parcel and to interest on any other mortgage held by the assignee on any property owned by the assignor. This is to be construed so that the rents derived from each property shall be devoted to the carrying charges of that particular property. The permissive application of the rents to interest on mortgages on other properties is in my judgment subordinate to the main purpose which is the appHcation of the rents to the carrying charges on the property from which the rents are derived. I reach the conclusion, therefore, that the judgment should be reversed, without costs, and an interlocutory judgment entered construing the instrument in accordance with this memorandum and ordering an accounting accordingly, without costs. (The judgment dismisses the complaint on the merits in an action for an accounting and reformation of the written agreement on the ground of mutual mistake.) Present — Sears, P. J., Edgeomb, Thompson, Crosby and Cunningham, JJ.

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Judgment affirmed, with costs. All concur, except Sears, P. J., who dissents and votes for reversal on the law and for granting a new trial, in the following memorandum: The assignment of rents, of which a copy, Exhibit “ A ” is annexed to the complaint, was on a form prepared by the defendant for use in cases where the property from which the rents were to be received was covered by a single mortgage. In the present instance the form was evidently for convenience used in relation to two separate parcels each covered by a separate mortgage. Under these circumstances and under general equitable principles, I construe the instrument as though it were two instruments each relating to a single parcel of property. On this fundamental principle the instrument as to each property provides for the application of the rents from each parcel to the carrying charges and arrearages of carrying charges of the particular parcel and to interest on any other mortgage held by the assignee on any property owned by the assignor. This is to be construed so that the rents derived from each property shall be devoted to the carrying charges of that particular property. The permissive application of the rents to interest on mortgages on other properties is in my judgment subordinate to the main purpose which is the appHcation of the rents to the carrying charges on the property from which the rents are derived. I reach the conclusion, therefore, that the judgment should be reversed, without costs, and an interlocutory judgment entered construing the instrument in accordance with this memorandum and ordering an accounting accordingly, without costs. (The judgment dismisses the complaint on the merits in an action for an accounting and reformation of the written agreement on the ground of mutual mistake.) Present — Sears, P. J., Edgeomb, Thompson, Crosby and Cunningham, JJ.

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Bluebook (online)

250 A.D. 821, 294 N.Y.S. 740, 1937 N.Y. App. Div. LEXIS 9129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallens-v-erie-county-savings-bank-nyappdiv-1937.