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Freedman v. Safran

Supreme Court of New York, Appellate Division

April 8, 1909

FREEDMAN
v.
SAFRAN.

Submission of controversy on an agreed statement of facts by Asher Freedman and Moritz Safran. Judgment for plaintiff.

[116 N.Y.S. 114] David B. Ogden, for plaintiff.

Harold Swain, for defendant.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.

SCOTT, J.

This is a submission of a controversy upon an agreed state of facts.

The plaintiff has contracted to convey to the defendant certain property on the northerly side of Grand street, west of Wooster, subject to certain specified incumbrances; and the defendant has agreed to purchase it and to pay therefor the stipulated price. The defendant has refused to perform the contract on the ground that the plaintiff did not have a good marketable title to the premises for the reason that the title and the interest of the plaintiff therein was incumbered by certain mortgages and judgments not excepted in the contract. The necessary tenders were made on both sides, and the question submitted to the court is whether the plaintiff's title was good and marketable, so that the defendant was obliged to complete his contract and pay the purchase money, or whether it was not good and marketable, so that the defendant was entitled to recover back the $500, which he had deposited on the signing of the contract, and the cost of the examination. The question arises out of the following facts:

On the 1st of June, 1904, the Demarest Pattern Company owned the premises in question and mortgaged them to the Metropolitan Life Insurance Company to secure the sum of $50,000. This mortgage was a first lien upon the property. On the 29th day of July, 1904, the Demarest Pattern Company executed a second mortgage covering the same premises to one Lee H. Smith to secure the sum of $5,000. Smith on the same day assigned the said mortgage to one Hyman Horwitz. On the 27th of October, 1904, the Metropolitan Life Insurance Company commenced an action for the foreclosure of its mortgage. The original summons and complaint and a notice of the pendency of action were filed on that day in the office of the clerk of the county of New York. Hyman Horwitz, who was then the owner of the second mortgage on the property, was made a party to the suit, as was the Demarest Pattern Company, which was still the owner of the fee. They both were duly served in the action with a summons and complaint. The notice of pendency of action correctly states the title of the action, giving the names of all the defendants. It also gives notice [116 N.Y.S. 115] that the action was commenced for the purpose of foreclosing the mortgage made to the plaintiff by the Demarest Pattern Company. It correctly described the mortgage and its place and date of record, and stated that it was indexed in section 2, block 475, on the land map of the city of New York, which was the proper section and block number. It stated that the mortgaged premises were described in the mortgage, to the record of which a correct reference was made; but it also contained a description of the property which was correct in all respects, except that the point of beginning in the description was stated to be on the southerly side of Grand street; whereas, the property was actually situated on the northerly side of Grand street. And it is this defect which is relied upon by the defendant as justifying his refusal to take the title tendered to him by the plaintiff.

The proper description is the description contained in the mortgage, which was as follows:

" All that certain lot, piece or parcel of land, with the buildings and improvements thereon, situate, lying and being in the borough of Manhattan, city, county and state of New York, bounded and described as follows: Beginning at a point on the northerly side of Grand street, distant seventy-five feet westerly from the corner formed by the intersection of the northerly side of Grand street with the westerly side of Wooster street; running thence northerly and parallel with Wooster street, one hundred feet; thence westerly and parallel with Grand street twenty-five feet; thence southerly and parallel with Wooster street and part of the distance through a party wall one hundred feet to Grand street; and thence easterly along Grand street twenty-five feet to the point or place of beginning."

The description contained in the notice of pendency of action corresponded with this in every particular, except that the point of beginning is stated as being on the southerly side of Grand street, instead of the northerly side. The notice was indexed against all the defendants in section 2, block 475, of the land map of the county of New York, which it is conceded was the proper section number and block number on the said land map of the lot described in the mortgage under foreclosure, to wit, the block bounded on the south by Grand street, on the east by Wooster street, on the west by West Broadway, and on the north by Broome street.

After the filing of this notice of pendency of action, and after the service of the summons upon Horwitz, who at the time of the commencement of the action was the assignee of the second mortgage for $5,000, which is one of the mortgages said to be now outstanding, Horwitz assigned the said mortgage to one Brill by assignment dated December 24, 1904, and on the 5th day of January, 1905, Brill assigned a half interest in the said mortgage to one Annie Levy. Neither Brill nor Levy were made parties to the suit. On the 1st day of January, 1905, and after the service of the summons upon them, the Demarest Pattern Company made a mortgage to the Colonial Trust Company, as trustee, to secure an issue of $60,000 of bonds, which mortgage was duly recorded. The defendant also claims that this mortgage was not cut off by the foreclosure suit in consequence of the defect already mentioned in the notice of pendency of action. The other defects complained of were certain judgments recovered against the Demarest Pattern Company after the filing of the lis pendens.

[116 N.Y.S. 116] On this state of facts the parties have agreed to submit to this court the following question:

" Whether or not at the time of the tender by the plaintiff herein of the deed to the defendant herein of the premises described in this submission pursuant to the contract existing between the said plaintiff and defendant for the sale of said premises, which contract is also referred to in said submission, the plaintiff had a good and marketable title to said premises free and clear of the incumbrances mentioned and referred to in Exhibit B annexed to this submission"

-and have stipulated for the appropriate judgment to be entered for plaintiff or defendant as an answer to said question shall require. The incumbrances referred to as contained in Exhibit B are the above-mentioned mortgages to Lee H. Smith and the Colonial Trust Company, and the several judgments against the Demarest Pattern ...


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