mortgage clause in New York

2013Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order (see Biggio v Biggio, 41 AD3d at 754 ), and because Marie Holdings’ agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife’s interest therein (see Catalano v Catalano, 158 AD2d 570, 572 [1990]).

2013Thus, notwithstanding the secured interest Marie Holdings acquired in the marital home by virtue of the mortgage the wife gave to it, because the wife undertook the mortgage in violation of the restraining order (see Biggio v Biggio, 41 AD3d at 754 ), and because Marie Holdings’ agent knew or should have known of the restraining order, its interest in the surplus funds was properly limited to the wife’s interest therein (see Catalano v Catalano, 158 AD2d 570, 572 [1990]).

1971Corp., 143 N. Y. 311, 322 ; Goldstein v. National Liberty Ins.

1897Hastings v. Insurance Co., 73 N. Y. 141 ; Eddy v. Assurance Corp., 143 N. Y. 311 , 38 N. E. 307 .

1931(Besas v. Slobodoff, 129 Misc. 205 .)” (More Realty Corp. v. Mootchnick, ante, p. 705, decided by this court January 29, 1931.) Appeal from order denying motion for reargument dismissed, as such an order is not appealable.

1931(Besas v. Slobodoff, 129 Misc. 205 .) The defense sought to establish that the parties had customarily, ever since the making of the mortgage, paid and received the quarterly installments of principal and of interest within the ten days’ grace period for the payment of interest.

1903Co., 110 N. Y. 1 , 17 N. E. 405 , which holds that the execution of a mortgage is not a violation of a contract provision not to assign.

1903Co., 110 N. Y. 1 , 17 N. E. 405 , which holds that the execution of a mortgage is not a violation of a contract provision not to assign.

2017Accordingly, the Supreme Court should have granted 21st Mortgage’s motion for leave to intervene and to be substituted as the named plaintiff (cf. Beltway Capital, LLC v Soleil, 104 AD3d 628 [2013]), and to vacate the order of dismissal (see Aurora Loan Servs., LLC v Gross, 139 AD3d 772 [2016]; Matter of Culberson, 11 AD3d 859 [2004]).

2017Accordingly, the Supreme Court should have granted 21st Mortgage’s motion for leave to intervene and to be substituted as the named plaintiff (cf. Beltway Capital, LLC v Soleil, 104 AD3d 628 [2013]), and to vacate the order of dismissal (see Aurora Loan Servs., LLC v Gross, 139 AD3d 772 [2016]; Matter of Culberson, 11 AD3d 859 [2004]).

2017Accordingly, the Supreme Court should have granted 21st Mortgage’s motion for leave to intervene and to be substituted as the named plaintiff (cf. Beltway Capital, LLC v Soleil, 104 AD3d 628 [2013]), and to vacate the order of dismissal (see Aurora Loan Servs., LLC v Gross, 139 AD3d 772 [2016]; Matter of Culberson, 11 AD3d 859 [2004]).

2009(Id.) Similarly, in Fanny Mae v Lindo ( 177 Misc 2d 1003 [Nassau Dist Ct 1998]), the issue raised pertained to a 10-day notice to quit served upon respondent by the petitioner’s counsel.

1996The applicability of the so-called liberalization clause is improperly raised for the first time on appeal and we decline to consider it (see, City of New York v Stack, 178 AD2d 355 , lv denied 80 NY2d 753 ).

1993Marine Mgt. v Seco Mgt., 80 NY2d 886 .

1983Co., 150 App Div 670, 671 , supra; Meyers v Norwich Union Fire Ins.

1979Co. of Philadelphia, 3 NY2d 491, 496 ; Thompson v Howell, 20 AD2d 963 ; 13 Williston, Contracts [3d ed], § 1552.) The parties to the mortgage claim, in effect, that they had agreed that the mortgagor would not be held personally liable on the debt and that the mortgage does not reflect the agreement because the scrivener incorrectly believed that he did express the intent of the parties by drawing a standard mortgage with no bond.

1979The fact that that sale was confirmed by the Federal court in the action to foreclose the mortgage is not a bar to that claim (see Bollinger & Boyd Barge Serv. v Motor Vessel, Captain Claude Bass, 576 F2d 595; Reedsburg Bank v Apollo, 508 F2d 995; cf. McDermott & Co. v The Morning Star, 457 F2d 815, cert den 409 US 948 ).

1979Co. of Philadelphia, 3 NY2d 491, 496 ; Thompson v Howell, 20 AD2d 963 ; 13 Williston, Contracts [3d ed], § 1552.) The parties to the mortgage claim, in effect, that they had agreed that the mortgagor would not be held personally liable on the debt and that the mortgage does not reflect the agreement because the scrivener incorrectly believed that he did express the intent of the parties by drawing a standard mortgage with no bond.

1979However, petitioner argues that the case of Baker v Sterling ( 39 NY2d 397 , supra) supports her position that the infancy defense is applicable to the mortgage at bar.

1976Co., 159 App Div 313 , affd 216 NY 692 ; 31 NY Jur, Insurance, § 1629, p 529).

1976Co., 159 App Div 313 , affd 216 NY 692 ; 31 NY Jur, Insurance, § 1629, p 529).

1970Co. ( 301 N. Y. 403 ) claiming that the legal effect of a mortgage clause in an insurance policy is to make an entirely separate insurance of the mortgagee’s interest, thereby resulting in an independent obligation to pay the mortgagee the lien sums due it.

1967(Chicago Dressed Beef Co. v. Gold Medal Packing Corp., 22 AD 2d 1010 .) They may, however, allege a valid counterclaim or setoff against the petitioner Chicago Dressed Beef Company, Inc., if, as transferee, it was chargeable with knowledge of the transfers or guilty of complicity in the alleged fraudulent acts.

1964(Bank of Rockville Centre Trust Co. v. Baldwin, 238 App. Div. 354 .) Among the terms thus incorporated and made a part of the Lloyd’s policy are specific provisions covering cancellation and a standard mortgage clause indorsement naming plaintiff’s assignor to whom loss is also specifically made payable in the Lloyds policy.

1964(Bank of Rockville Centre Trust Co. v. Baldwin, supra.) The provisions as to cancellation are particularly pertinent in light of the contention that the policy was cancelled by defendant prior to the time of loss.

1964Co., 187 Misc. 806, affd. 272 App. Div. 880 .) Since the mortgagee’s interest under the policy sued upon was covered by a standard mortgage clause, its rights are governed thereby.

1939Presiding Justice Lazansky, speaking for the Appellate Division in the Dime Savings Bank case (supra), in effect so held when he said in his opinion ( 249 App. Div. 176 ): “ Where the assignment of rents clause gives the mortgagee a right of entry upon default, then, upon demand and refusal, the assignment of rents may become absolute.” (Citing Freedman’s Savings & Trust Co. v. Shepherd, 127 U. S. 494 ; Matter of Banner, [D.

1939The Court of Appeals affirmed and ordered judgment absolute ( 275 N. Y. 62 ), but did not pass upon the question whether the bank had the right to enter into possession and collect the rents, for that question was not open, since no appeal had been taken from that part of the judgment which decided that the bank was hable but that the owner of the equity had not suffered any • substantial damage.

1939Here, the mortgage clause specifically and clearly confers upon the mortgagee, the plaintiff herein, “ the right forthwith, after any such default, to enter upon and take possession of the said mortgaged premises.” In the Dime Savings Bank case there was no such provision; the mortgagee “ was not given the right to enter.” ( 249 App. Div. at p. 177 .) Ordinarily, “ prior to judgment in a foreclosure action, the only remedy of the mortgagee for possession, and through it, for the rents, is by the appointment of a receiver in such an action, unless, however, consent to take possession was given

1939With the mortgagor’s consent, such an entry and possession prior to foreclosure is lawful.” (Citing cases.) (148th Street Realty Co., Inc., v. Conrad, 125 Misc. 142, 145 .) In the instant case no receiver has been applied for or appointed, nor have the answering defendants consented to give the plaintiff possession.

1937(Dusenbery v. Bragg, 241 App. Div. 553 .) The court there said: “ A mortgage is not a claim against the executors and is not a claim against the personal estate in their hands.

1935Law § 170; Brooklyn Savings Bank v. Wechsler Estate, 259 N. Y. 9 .) The court further said that “ A mortgage is not a claim against the executors, and is not a claim against the personal estate in their hands.” Following this reasoning, it may be said that a right of action, or a suit at law, is not within the definition of claims that executors are bound to recognize.