Werbelovsky v. Rosen Bros. News Agency, Inc.

249 A.D. 758, 291 N.Y.S. 868, 1936 N.Y. App. Div. LEXIS 5890

Opinion

Action to recover $25,000 and interest on a bond executed by the corporate defendant and guaranteed by the individual defendants. Judgment for defendants reversed on the law, with costs, and judgment directed in favor of the plaintiff in the sum of $2,205 as interest due on the principal obligation, with costs. Section 1083-b of the Civil Practice Act precludes an action on a bond (the payment of principal of which is in default) where the real property security therefor is of a value equal to or in excess of the prior liens thereon and the mortgage given as security for said bond. This determination is without prejudice to the plaintiff to bring an action for foreclosure or otherwise as he may be advised. It does not, however, bar an action for the payment of interest due on said principal amount. (Johnson v. Meyer, 242 App. Div. 798; affd., 268 N. Y. 701.) Assuming, therefore, that the properties in question were of a value that precluded any judgment in favor of the plaintiff for the unpaid principal or any part thereof as of the time inquiry was made, the plaintiff may not be denied judgment for the amount of interest due as of that date. Appeal from the order denying motion to fix value dismissed. Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ., concur.