Bernstein v. Singer , 248 A.D. 585 ( 1936 )

Action on a bond given to induce, for a valuable consideration, acceptance of the assignment of a bond and mortgage which was a second lien on certain real property. The lien of the mortgage was extinguished by the foreclosure of a prior mortgage. The bond in suit was a primary obligation to pay and not a guaranty of payment, and, as a consequence, the obligors were not entitled to notice of the foreclosure of the first mortgage or the defaults in payment under the second mortgage. Order granting plaintiff judgment under rule 113 and judgment entered thereon affirmed, with ten dollars costs and disbursements. Hagarty, Carswell, Davis and Johnston, JJ., concur; Lazansky, P. J., dissents, with the following memorandum: The language of the last paragraph of the bond clearly indicates that the assigned mortgage was to be collateral to the bond. In this view the transaction tends to the normal and is not unusual and unique as the determination of the court makes it. The defendants were entitled to notice of the first mortgage foreclosure proceedings and of defaults in the second mortgage. The order and judgment should be reversed and motion for summary judgment denied.