Woodhaven Housing Corp. v. Kaiser

240 A.D. 853

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1933
• Status: Published

Opinion

— Judgment reversed on the law and the facts and a new trial granted, costs to appellant to abide the event. The action is one at law, seeking a money judgment. There was sent to the Special Term for trial the issue of reformation of but four mortgages, whereas plaintiff claimed that defendant had purchased thirteen mortgages, on each of which there was due thirty per cent of the purchase price. The issue for the Special Term was whether a guaranty of payment contained in the assignments of the four mortgages to the defendant was the result of agreement between the parties. There was also involved the claim of extinguishment by merger of some of the four mortgages with the fee which it was claimed that defendant had brought about. Instead of trying out the only issues sent to the Special Term, the trial court has rendered a judgment beyond the scope of the order and has, in effect, determined the issues to be tried before a jury after a determination on the special issues presented for trial. Findings of fact numbered I to XVI, inclusive, and conclusions of law numbered I to III, inclusive, are reversed. Lazansky, P. J., Kapper, Hagarty, Carswell and Davis, JJ., concur.