McCraith v. Nat'l Mohawk Valley Bank
| Decision Date | 01 March 1887 |
| Citation | 10 N.E. 862,104 N.Y. 414 |
| Parties | McCRAITH v. NATIONAL MOHAWK VALLEY BANK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action at law to recover over $1,300 and interest. The complaint alleges that the defendant is a banking corporation, duly organized and existing under and by virtue of the laws of the United States, and doing business, as such corporation, at Mohawk, in the county of Herkimer; that one James M. Dygert was the owner of certain real estate in fee, situated in the county of Herkimer, and that he conveyed the same by warranty deed to plaintiff on the first day of January, 1876, and that the plaintiff, on the same day, made, executed, and delivered to said Dygert a mortgage on the same premises, with covenants to pay, to secure the purchase money, amounting to $1,363.81; that the defendant owned a prior mortgage on the premises; that Myers and Rasbach also owned and held another mortgage on the same and other lands, at the time this mortgage to Dygert was given, which mortgage was junior to defendant's mortgage; that the said defendant, through its cashier, H. D. Alexander, requested the plaintiff to pay the amount unpaid on the said Dygert mortgage to the defendant, so that the defendant could apply the same on its mortgage, and promised the plaintiff that, if he would, the money should be applied on the defendant's prior mortgage, ‘and he would procure for said plaintiff a release of the premises from the said mortgage held and owned by Myers and Rasbach, and would save and keep the plaintiff harmless from the same;’ that thereupon, and on the twenty-second day of July, 1876, the plaintiff paid to the defendant the said sum of $1,393.33; that the defendant released their said mortgage, but neglected and failed to obtain or procure a release of the Myers and Rasbach mortgage; that afterwards, in 1878, the premises were sold on the Myers and Rasbach mortgage.
Amos H. Prescott, for appellant.
Smith & Steele, for respondent.
There was a conflict of evidence as to the circumstances under which the bank took the plaintiff's mortgage. It was claimed on the part of the plaintiff that the bank held it as collateral security for certain obligations held by the bank against Dygert, and therefore that it had an interest in the security when it was paid to the bank by the plaintiff. The bank, on the other hand, insisted that it held the mortgage simply as the custodian of Dygert, for the simple purpose of receiving payments which might be made thereon by the plaintiff. This issue was...
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