Summary
In Winslow v. Stoothoff (104 App. Div. 28) the extension agreement contained the following provision: "Nothing herein contained shall invalidate any of the securities now held for said debt, or impair any condition in said bond and mortgage contained.
Summary of this case from Metzger v. Nova Realty Co.Opinion
April, 1905.
John T. Sackett, for the appellant.
Melville J. France [ Abram H. Dailey with him on the brief], for the respondent.
The extension given to the Winslows would have operated to release Stoothoff from his obligation as mortgagor to the extent of the value of the land, if that extension had been given without Stoothoff's consent. ( Murray v. Marshall, 94 N.Y. 611; Antisdel v. Williamson, 165 id. 372.) The consent to the extension was obviously obtained to prevent this result. The assumption by the Winslows of the payment of the principal sum and interest secured by the bond and mortgage, in consideration of the extension, had nothing to do with Stoothoff's liability. It was an independent promise to satisfy the mortgage debt, made in order to secure a postponement in the enforcement of the mortgage against the land for a period of three years. The Winslows did not thereby agree to pay the mortgage debt if Stoothoff failed to pay it, but they assumed its payment absolutely. When, therefore, they were forced to pay, they were paying not Stoothoff's debt but their own. I cannot see how the fact that the deficiency judgment might be enforced against Stoothoff in any manner operates to relieve the Winslows from their obligation under a wholly independent agreement made between them and the mortgagee. No privity between them and Stoothoff was created by his consent to the extension, which was a transaction wholly between him and the mortgagee, in nowise affecting the enforcibility of their promise to pay the mortgage debt. The extension agreement was fully executed so far as the mortgagee is concerned, and he thereupon became entitled to enforce that part of it which bound the Winslows to pay the mortgage debt.
For these reasons it seems to me that the judgment at Special Term should have been the other way, and I, therefore, advise a reversal.
HIRSCHBERG, P.J., WOODWARD and JENKS, JJ., concurred; HOOKER, J., not voting.
Judgment reversed and new trial granted, costs to abide the final award of costs.