Loeb v. Willis

Decision Date27 October 1885
Citation100 N.Y. 231,3 N.E. 177
PartiesLOEB v. WILLIS, impleaded.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Benjamin A. Willis, pro se.

William Man, for respondent, Solomon Loeb.

EARL, J.

In January, 1875, the defendant Willis took a deed of real estate in the city of New York from S. T. Meyer, which was incumbered by a mortgage held by A. T. Meyer, and he assumed and agreed to pay such mortgage. A. T. Meyer, the mortgagee, subsequently assigned the mortgage to the plaintiff, and he commenced an action to foreclose the same, making S. T. Meyer, the mortgagor, and Willis and others, defendants. Willis interposed an answer to the action and appeared upon the trial thereof, and defended the same upon the merits. The plaintiff recovered in the action the usual foreclosure judgment, by which it was also adjudged that the mortgagor and Willis were both responsible for any deficiency which should remain after applying the proceeds of the real estate upon the mortgage. Subsequently, and before proceeding to a sale under that judgment, the plaintiff made a motion to the court for leave to discontinue the foreclosure action, and to allow him to bring suit upon the bond accompanying the mortgage. The motion was granted, and an order was entered discontinuing the foreclosure action. Thereafter this action was commenced to enforce against the mortgagor and against Willis on his agreement to pay the mortgage the whole amount due thereon. In his complaint the plaintiff, among other things, alleged the foreclosure action; that Willis interposed an answer therein upon the merits; that the issue raised by the answer came on for trial; that Willis appeared and offered evidence upon the trial to sustain the issues on this part, which evidence was received and considered; that the court, after due deliberation thereon, filed a decision containing findings of fact and of law which remained on the files of the court, and which ordered judgment upon the issues in favor of the plaintiff, directing a foreclosure of the mortgage and a sale of the premises thereby mortgaged, and that the plaintiff should have judgment against the defendants, Meyer and Willis, for any deficiency after applying the proceeds of the foreclosure upon the debt. And he alleged that the liability of Willis to pay the bond secured by the mortgage had been already adjudged by the court. He further alleged that upon his application an order was made permitting him to discontinue the foreclosure action without costs, and discontinuing the same and permitting him to bring an action upon the bond.

Willis in his answer, among other things, denied that there was any adjudication binding upon him, and alleged that on the seventeenth day of December, 1874, it was agreed by and between him and the defendant Meyer, his grantor, that in consideration that he would purchase the real estate referred to in the complaint and assume the payment of the mortgage, he (Meyer) would lease the real estate of him upon the conveyance of the same to him for the term of two years, and pay him therefor $4,400 for the first year, and $4,800 for the second year, and also pay certain taxes then due upon the real estate; and that he would also procure an extension of time in which to pay the mortgage; that in pursuance of such agreement, and relying thereupon, he (Willis) took the conveyance of the real estate, and assumed the payment of the mortgage; that Meyer wholly and entirely failed in every respect to comply with his agreement, or to carry out the same.

Upon the trial the plaintiff offered in evidence the bond and mortgage, and the assignment thereof to him, and the...

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55 cases
  • Wilmington Sav. Fund Soc'y, FSB v. DeCanio, 600554/15.
    • United States
    • New York Supreme Court
    • May 3, 2017
    ...has been discontinued by consent or stipulation, it is [as though] the action never existed; ...Even in the ancient case of Loeb v. Willis, 100 N.Y. 231, 235, 55 Sickels 231 (1885) the Court of Appeals stated: The foreclosure action was discontinued and all the proceedings therein thus annu......
  • Pryce v. Nationstar Mortg. LLC
    • United States
    • New York Supreme Court
    • September 23, 2020
    ...See, Deutsche Bank Nat. Trust Co. v. Adrian , 157 A.D.3d 934, 935-936, 69 N.Y.S.3d 706 (2d Dept. 2018). See also, Loeb v. Willis, 100 N.Y. 231, 235, 3 N.E. 177 (1885) ("The foreclosure action was discontinued, and all the proceedings therein thus annulled").The voluntary discontinuance of t......
  • Christiana Trust v. Barua
    • United States
    • New York Supreme Court — Appellate Division
    • June 3, 2020
    ...of an action withdraws all requests for relief, including any demand for recovering the accelerated debt, citing Loeb v. Willis , 100 N.Y. 231, 3 N.E. 177 and Mahon v. Remington , 256 App.Div. 889, 9 N.Y.S.2d 47, those cases are inapplicable, as an acceleration springs from the parties' not......
  • Wells Fargo Bank, Nat'l Ass'n v. Islam
    • United States
    • New York Supreme Court — Appellate Division
    • November 18, 2020
    ...all of the requests for relief contained therein (see Mahon v. Remington, 256 App.Div. 889, 889, 9 N.Y.S.2d 47 ; see also Loeb v. Willis, 100 N.Y. 231, 235, 3 N.E. 177 ). Under these circumstances, the plaintiff "destroy[ed] the effect" of the election that it had made in the complaint in t......
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