mortgagor standard in New York

1958In Carlos Land Co. v. Root ( 282 App. Div. 349, 352 ) the Appellate Division stated as follows: “ We do not think that a fire insurance policy issued to the mortgagor with a standard mortgagee clause may be deemed to be collateral security for the debt, evidenced by the bond and mortgage, so as to constitute part payment of the debt. * * * The issuance of the fire policy in this case was not a part payment of the debt ‘ accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder.

1958In Carlos Land Co. v. Root ( 282 App. Div. 349, 352 ) the Appellate Division stated as follows: “ We do not think that a fire insurance policy issued to the mortgagor with a standard mortgagee clause may be deemed to be collateral security for the debt, evidenced by the bond and mortgage, so as to constitute part payment of the debt. * * * The issuance of the fire policy in this case was not a part payment of the debt ‘ accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder.

1958In Carlos Land Co. v. Root ( 282 App. Div. 349, 352 ) the Appellate Division stated as follows: “ We do not think that a fire insurance policy issued to the mortgagor with a standard mortgagee clause may be deemed to be collateral security for the debt, evidenced by the bond and mortgage, so as to constitute part payment of the debt. * * * The issuance of the fire policy in this case was not a part payment of the debt ‘ accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder.

1953Co., 44 N. Y. 42 .) We do not think that a fire insurance policy issued to the mortgagor with a standard mortgagee clause may be deemed to be collateral security for the debt, evidenced by the bond and mortgage, so as to constitute part payment of the debt.

1927The same doctrine was applied in Paine v. Jones ( 76 N. Y. 274 ) where a mortgage contained a clause requiring the mortgagee to release a portion of the mortgaged premises on payment of a certain sum, and the mortgagor afterwards conveyed the property to a grantee who assumed and agreed to pay the mortgage and by a subsequent agreement without the knowledge or consent of the mortgagor the clause as to the release was abrogated.

1917The learned justice below has, however, held that the Appellate Division of this department has practically so decided in the case of Harris v. Taylor, supra, and it must be admitted that there are some expressions in the opinion of that case which lend much weight to his contention.

1909In the case of Castleman v. Mayer, 55 App.Div. 515 ; affd., 168 N. Y. 354 , it was held that where, at the time of the execution of a chattel mortgage which was not filed, the delivery of the possession of the chattels was only color-able, and where, by the express terms of the mortgage, it was contemplated that the mortgagor should remain in possession, and the change of ownership and possession were intention ally concealed from the public, the subsequent act of the mortgagor in delivering the actual possession of the property to the mortgagee and the subsequent sale by the mortgagee would,

1909In the case of Castleman v. Mayer, 55 App.Div. 515 ; affd., 168 N. Y. 354 , it was held that where, at the time of the execution of a chattel mortgage which was not filed, the delivery of the possession of the chattels was only color-able, and where, by the express terms of the mortgage, it was contemplated that the mortgagor should remain in possession, and the change of ownership and possession were intention ally concealed from the public, the subsequent act of the mortgagor in delivering the actual possession of the property to the mortgagee and the subsequent sale by the mortgagee would,

1907(Dazian v. Meyer, 66 App. Div. 575 .) As the court will not appoint a receiver merely because the mortgagor by a clause-in the mortgage has consented-thereto, hut will take that fact into consideration with the other evidence presented in deciding how to exercise its discretion (Eidlitz v. Lancaster, 40 App. Div. 446 ; New York Building Loan Co. v. Begly, 75 id. 308), so I think the court should take the contract concerning notice into consideration in. deciding whether to exercise its jurisdiction without notice which apparently was not done here.

1907(Dazian v. Meyer, 66 App. Div. 575 .) As the court will not appoint a receiver merely because the mortgagor by a clause-in the mortgage has consented-thereto, hut will take that fact into consideration with the other evidence presented in deciding how to exercise its discretion (Eidlitz v. Lancaster, 40 App. Div. 446 ; New York Building Loan Co. v. Begly, 75 id. 308), so I think the court should take the contract concerning notice into consideration in. deciding whether to exercise its jurisdiction without notice which apparently was not done here.

1888As to them he had ceased to be a trustee, or, if not, he had no right to change the essential provisions of the trust, far less to annul the trust itself, and in dealing with him in contravention of its terms and of his duty, the defendants took the risk. *165 (Swift v. Smith, 102 U. S. 442 ; McPherson v. Rollins, 107 N. Y. 316 .) The learned counsel for the appellants also argues that Webster is protected by the provision of section 66, 1 Revised Statutes, page 730, title 2, part 11, chapter 1, article 2.

1888As to them he had ceased to be a trustee, or, if not, he had no right to change the essential provisions of the trust, far less to annul the trust itself, and in dealing with him in contravention of its terms and of his duty, the defendants took the risk. *165 (Swift v. Smith, 102 U. S. 442 ; McPherson v. Rollins, 107 N. Y. 316 .) The learned counsel for the appellants also argues that Webster is protected by the provision of section 66, 1 Revised Statutes, page 730, title 2, part 11, chapter 1, article 2.