Title & Mortgage Guarantee Co. v. Syracuse Plaster Co. , 225 A.D. 781 ( 1928 )

Per Curiam.

We are of the opinion that the instrument of July 29, 1927, from Joseph J. Ray to defendant Syracuse Trust Company extended no further than to assign to the trust company any sums of money that were then or might thereafter become payable to Mr. Ray from plaintiff upon the bond, mortgage and so-called building loan agreement of May 18, 1927. The only purpose and result of plaintiff’s consent thereto was to effect a waiver of certain provisions of the agreement by which such an assignment would, without the consent, relieve plaintiff from advancing more than the $165,000 already paid to Mr. Ray. The phraseology of the written assignment and the facts and circumstances surrounding the transaction all negative the claim of the appellant Syracuse Trust Company that there was transferred to it, either in equity or as a junior participant therein, an interest in the mortgage itself. It only acquired the right to demand payment directly to it of any and all sums of money, not exceeding $60,000, that plaintiff might otherwise thereafter become obligated to pay over to Mr. Ray under the mortgage agreement. The trust company’s advances to Mr. Ray were banking loans and not payments to him of moneys due him under the mortgage. ' In view of this determination it becomes unnecessary to refer to other questions urged for our consideration. Certain conclusions of law are disapproved and reversed; certain new findings of fact and conclusions of law are made. The judgment should be modified on the law in accordance herewith and, as modified, affirmed, with one bill of costs in favor of lienors appellants against defendant Syracuse Trust Company. All concur. Present — Clark, Sears, Crouch, Taylor and Sawyer, JJ. Judgment modified on the law in accordance with per curiam memorandum and as so modified affirmed, with one bill of costs in favor of the lienor appellants against the Syracuse Trust Company. Certain conclusions of law disapproved and new conclusions made.