Buffalo Sav. Bank v. Siger, Inc.

• Decision Date: 29 June 1967
• Citation: 281 N.Y.S.2d 938,28 A.D.2d 815
• Parties: BUFFALO SAVINGS BANK, Respondent, v. SIGER, INC., et al., Defendants, and Ethel Coffer, Appellant, Ethel COFFER, Appellant, v. Gurney M. KRANZ et al., Defendants, and Buffalo Savings Bank, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 938

281 N.Y.S.2d 938

28 A.D.2d 815

BUFFALO SAVINGS BANK, Respondent, v.SIGER, INC., et al., Defendants, and Ethel Coffer, Appellant,Ethel COFFER, Appellant, v.Gurney M. KRANZ et al., Defendants, and Buffalo Savings

Bank, Respondent.

Supreme Court, Appellate Division, Fourth Department.

June 29, 1967.

James C. Heaney, Buffalo, for appellant.

Little & Burt, John H. Little, Buffalo, for respondent.

Before WILLIAMS, P.J., and BASTOW, DEL VECCHIO and MARSH, JJ.

MEMORANDUM:

Mrs. Coffer was a vendee in possession under a contract executed with Collen Enterprises, Inc.When Collen subsequently executed a deed of the premises to Siger, Inc. and Siger executed a mortgage thereof to Buffalo Savings, the interests of both Siger and Buffalo Savings were subject to the right of the vendee to receive legal title upon compliance with the purchase contract.(Phelan v. Brady, 119 N.Y. 587, 23 N.E. 1109, 8 L.R.A. 211)The deed from Collen to Siger was not entirely a nullity however; it conveyed the interest which Collen still had in the land (Real Property Law, § 245) in the form of a vendor's lien (Charles v. Scheibel, 128 Misc. 275, 218 N.Y.S. 545, affd.221 App.Div. 816, 222 N.Y.S. 784) and it was this right to which the mortgagee bank succeeded upon default in the mortgage payments.The bank is entitled to enforce the lien in this action; while it actually has no 'mortgage' on the property which it may foreclose against the contract vendor, its rights under the lien may be implemented.Under CPLR 3017(a)the court was authorized to grant the relief which was appropriate to the proof, although it denied the foreclosure and sale demanded in the bank's complaint.The bank is entitled to a judgment that the vendee must now either pay off the balance of the purchase price,...