Weisberg v. Elias

230 A.D. 195, 243 N.Y.S. 406, 1930 N.Y. App. Div. LEXIS 8577

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1930
• Status: Published

Opinions

McAvoy, J.

The action is brought upon a guaranty of payment of installments of a mortgage as they became due.

There was a default in payment of an installment and' foreclosure action was brought on the entire debt and judgment was entered thereon for a deficiency of $8,000. The installments are, therefore, all due under the acceleration clause operative on default in one, since the prescribed election was made by the mortgagee and a judgment declares the sum due at once. Plaintiff offsets the sum realized on the sale in reduction of the debt which the guarantor agreed to pay if bis principal did not.

Plaintiff contends that the defendant is liable on his guaranty for the amount of the deficiency judgment.

Defendant urges that he is not liable except for the amount of the installments as they severally would have become due under the mortgage agreement. This would subordinate the judgment to the mortgage installments which are now merged therein and prevent any recovery on the guaranty, although the judgment declares the debt guaranteed due. This is an ingenious device, but the debt may not be avoided by so facile a means.

The judgment appealed- from should be reversed, with costs, and .judgment directed in favor of plaintiff with costs.

Merrell and Sherman, JJ., concur; Finch and O’Malley, JJ., dissent.