Kassin v. M.&L. Bldg. Corp.

• Decision Date: 12 October 1926
• Citation: 153 N.E. 559,243 N.Y. 376
• Parties: KASSIN v. M. & L. BUILDING CORPORATION et al.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 376

153 N.E. 559

KASSIN

v.M. & L. BUILDING CORPORATION et al.

Court of Appeals of New York.

Oct. 12, 1926.

Action to foreclose mortgage by Philip Kassin against the M. & L. Building Corporation, Fanny Brandfon, Morris Schwartz, and others. From an order of the Appellate Division (215 App. Div. 588, 214 N. Y. S. 298), reversing on the facts and the law an order of the Special Term, which denied Fanny Brandfon's motion to require a referee in the foreclosure sale to return to her moneys paid at the sale to repurchase property, Morris Schwartz appeals.

Order of Appellate Division reversed, and that of Special Term affirmed.

Appeal from Supreme Court, Appellate Division, Second department.

Clarence G. Bachrach, of Brooklyn, for appellant.

Gerson C. Young and Allan D. Emil, both of New York City, for respondent.

POUND, J.

The plaintiff foreclosed a mortgage covering thirty-four lots, situate on Crown street in the borough of Brooklyn, city of New York. The appellant, Morris Schwartz, was the owner and holder of a mortgage, second and subordinate to that held by the plaintiff, upon thirty-three of the lots covered by the plaintiff's mortgage. The respondent Fanny Brandfon was the owner of the thirty-fourth lot, the lot not covered by the mortgage held by Schwartz. A judgment of foreclosure and sale was entered which directed the sale of the premises described in the complaint, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of sale, etc., and the premises were sold one lot at a time. Thirty-three of the lots having been sold, Brandfon's attorney, who was present at the sale, discovered that the amount for which they had been sold was sufficient to pay the mortgage debt, the expenses of the sale, etc., as required by the judgemtn of foreclosure and sale. He protested orally and in writing to the referee against the sale of the respondent's lot. The referee, not being certain that the amount realized was sufficient to cover all the items which he would be required to pay, sold it. The respondent, through her attorney, thereupon purchased it for the sum of $10,650. Subsequently the referee ascertained, and it is undisputed, that the amount realized from the sale, before the lot of the respondent was sold, was sufficient to pay the mortgage debt, the expenses of the sale, and all the other items required to be paid by him under the judgment herein. On closing title to the lot owned and purchased by Mrs. Brandfon, her attorney protested against paying the balance of the purchase price and taking a deed, but the plaintiff's attorney insisted upon the terms of the sale being carried out. Thereupon, under protest, the balance was paid, the deed accepted and recorded. The report of sale has not yet been filed. The respondent then moved for an order directing the referee to repay to her the amount paid by her, $10,650, less $429.56 paid by the referee for taxes, arrears of taxes, assessments, water rates, accrued interest, penalties thereon, and for stamps on the deed affecting her lot. This motion was denied at Special Term. The Appellate Division reversed and granted the motion. The only question before this court is whether the Brandfon lot should have been sold...