Hawes v. Dobbs

• Decision Date: 21 March 1893
• Citation: 137 N.Y. 465,33 N.E. 560
• Parties: HAWES v. DOBBS et al.
• Court: New York Court of Appeals Court of Appeals

137 N.Y. 465

33 N.E. 560

HAWES

v.DOBBS et al.

Court of Appeals of New York.

March 21, 1893.

Appeal from court of common pleas of New York city and county, general term.

Action by William P. Hawes against Charles G. Dobbs and others to obtain the adjudication of an agreement made between plaintiff's assignor and defendant Charles G. Dobbs, whereby he undertook to protect plaintiff's assignor, and be responsible to him for the repayment of a loan. From a judgment of the general term (18 N. Y. Supp. 123) affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by EARL, J.:

The facts as alleged in the complaint, and found at the special term, are substantially as follows: In June, 1887, the defendant Charles G. Dobbs owned certain real estate in the city of New York, subject to three mortgages given to secure, in the aggregate, the sum of $39,000. In that month he conveyed the real estate to William H. Niebuhr, subject to the three mortgages, for the consideration of $85,000, and took back a purchase-money mortgage for the sum of $46,000. The deed was executed to Niebuhr in pursuance of a building contract between him and Dobbs, by which Dobbs agreed to advance to him the sum of $45,000, in installments, to aid him in erecting buildings upon the real estate. In pursuance of that agreement, Niebuhr executed to Dobbs a mortgage for the sum of $45,000, to secure the money thus to be advanced. Thereafter, in October, 1887, Niebuhr conveyed, by deed, to Gilbert R. Hawes, an undivided one-fourth part of the real estate, subject to the mortgages, and that deed was delivered pursuant to an agreement and understanding between him, Dobbs, and Niebuhr, whereby Dobbs undertook and agreed to protect and secure to Hawes and his assigns his interest in the real estate thus conveyed. On the 18th day of June, 1888, there was an agreement made between Hawes and Dobbs by which Hawes was to aid in the completion of the buildings upon the real estate, and to aid Dobbs in making the loans of money under his building contract with Niebuhr, by advancing, for the account of Dobbs, the sum of $5,500, to be used for that purpose. Dobbs agreed that Niebuhr would, as security for the $5,500 so advanced, execute and deliver to Hawes his bond and a mortgage upon the balance of the real estate owned by him; that he would protect Hawes, and be responsible to him for the payment of the sum so advanced, with interest; that he would protect the interest of Hawes in the real estate conveyed to him, and the mortgage so to be given; and that he would not allow or further any foreclosure sale of the real estate under any mortgage thereon then owned or controlled by him, or which thereafter might be owned or controlled by him, which would impair or bar the interests of Hawes either under the deed or mortgage, or divest his rights in the property. The $5,500 was advanced by Hawes, in pursuance of that understanding, and used by Dobbs, and credited to him as advanced under the provisions of his building contract with Niebuhr. In pursuance of the agreement, Dobbs procured Niebuhr to execute a mortgage for $5,500 to Hawes as arranged. In November, 1887, Dobbs procured his mother to take an assignment of one of the mortgages which were liens upon the property at the time of his conveyance to Niebuhr, and she paid therefor with her own money the sum of $14,000. Subsequently, in March, 1888, Dobbs caused an action to be commenced for the foreclosure of that mortgage in the name of his mother, the holder thereof, to which action all the persons interested in or having liens upon the real estate, including Hawes, were made defendants. Niebuhr appeared in the action, and interposed a defense. The action proceeded to judgment of foreclosure, and Niebuhr appealed from the judgment. During the pendency of the appeal, Dobbs procured Niebuhr to convey his interest...