D'Eliza v. Ritondo

• Court: New York Court of Appeals
• Writing for the Court: CRANE
• Citation: 139 N.E. 251,235 N.Y. 232
• Parties: D'ELIZA v. RITONDO et al.
• Decision Date: 06 March 1923

235 N.Y. 232
139 N.E. 251

D'ELIZA
v.
RITONDO et al.

Court of Appeals of New York.

March 6, 1923.

Action by Mollie Stamile D'Eliza against Maria Louise Ritondo and others. From judgment of the Appellate Division (200 App. Div. 877,192 N. Y. Supp. 923) affirming a judgment of the Special Term (109 Misc. Rep. 440,178 N. Y. Supp. 838), plaintiff appeals.

Modified in accordance with opinion.

[235 N.Y. 233]Appeal from Supreme Court, Appellate Division, Second Department.
Lynn C. Norris, of Brooklyn, and Arthur P. Hilton, of Jamaica, for appellant.

235 N.Y. 234]Frederick L. Gilbert, of Cedarhurst, for respondents.
Henry L. Maxson, of Hempstead, guardian ad litem, for infant respondents.

CRANE, J.

This action was brought to foreclose a mortgage given to the plaintiff by her mother on property which she took as survivor in a tenancy by entirety. Natale Stamile and Charlotte, his wife, the plaintiff's father and mother, took the property in question as tenants by entirety under full covenant and warranty deed on October 25, 1905. When the husband died on April 22, 1910, his wife, surviving him, became owner in fee. She gave to her daughter, Mollie Stamile, the bond and mortgage in suit, dated September 23, 1910, as a wedding dowry upon her marriage to Evangelist D'Eliza. The mortgage debt carried 6 per cent. interest due and payable from the death of the mother. The defendants, Mariagata Stamile Santoro, Maria Louise Ritondo, Susie Stamile Cascardi and Ida Stamile are daughters of the said Natale Stamile and Charlotte Stamile, and the only heirs at law and next of kin of said Charlotte Stamile. Prior to the death of the father, and on or about the 7th day of July, 1907, he and his wife executed a certain paper which purported to be a mutual will, whereby it was provided that, upon the death of [235 N.Y. 235]either, the survivor should take the real property for life, with the remainder to their children. The terms of this will need not here be given, as the courts below have held that, upon the death of the husband, the wife took a fee of the property as the survivor under the tenancy by the entirety, and did not take under this will merely a life tenancy, with the remainder to the children. The court found that there was no contract to make mutual wills binding upon the wife. This conclusion cannot now be questioned, as there has been no appeal taken by the remaindermen from this decision.

The principal and interest not having been paid on the death of Charlotte Stamile November 17, 1912, this action to foreclose was commenced, resulting in a decree of foreclosure and sale. The property was bought in by the plaintiff for $1,000 over and above the amount of principal and interest and other charges, and the title taken in the name of the plaintiff and her husband. The judgment of foreclosure was made and entered

[139 N.E. 252

on the 2d day of November, 1915, and thereafter, and on the 1st day of May, 1916, the plaintiff, Mollie Stamile D'Eliza, and her husband procured a loan of $3,000 from one John Johnston, and delivered to him a bond and mortgage for that amount upon the property as security. Of this amount $2,500 was used to pay off a first mortgage, which was a lien prior to that of the plaintiff. Nearly three years after, and in September of 1918, the defendant Mariagata Stamile Santoro, who was an infant at the time of the foreclosure decree, made an application to the Supreme Court to set aside the said judgment of foreclosure and sale entered on November 3, 1915, and, while her application was denied by the Special Term, it was granted on May 9, 1919, by the Appellate Division in an order which permitted said defendant to interpose an answer, and directed the judgment of foreclosure and sale in the meantime ‘to stand until the final determination of the issues raised by the [235 N.Y. 236]answer.’ There were no defects or irregularities in the foreclosure proceedings or in the sale. All these defendants were then parties to the action, although infants. The plaintiffs on the sale procured good title, which they could pass on as security to their mortgagee. Johnston, the mortgagee, apparently had no notice of this application to open the default and the foreclosure proceedings. In accordance with this permission granted by the Appellate Division order, the defendant Santoro served an answer which raised an issue to be tried. Two other infant defendants, Susie Stamile Cascardi and Ida Stamile, through their guardian ad...