Opinion
January 8, 1941.
Present — Crosby, P.J., Cunningham, Taylor, Dowling and Harris, JJ.
Judgment and order affirmed, with costs. Memorandum: The appellant-mortgagor conveyed the mortgaged premises subject to the mortgage but did not require his grantee to assume payment of the mortgage debt, thus creating an equity in favor of the appellant-mortgagor similar to that of a surety, which equity the respondent-mortgagee was under a duty to respect. ( Pain v. Packard, 13 Johns. 174; Remsen v. Beekman, 25 N.Y. 552; Murray v. Marshall, 94 id. 611; Gottschalk v. Jungmann, No. 1, 78 App. Div. 171; Colgrove v. Tallman, 67 N.Y. 95.) The defense, upon which the appellant relies, alleges in substance that, after default in payment of accrued interest, he notified the respondent to proceed against his grantee and the property, which respondent failed to do. This defense is insufficient in law in that it lacks the essential allegation that, at the time of giving the notice, the property exceeded in value the amount of the mortgage debt and that, subsequent to such notice, the value of the property had depreciated to such an extent that it was worth less than the mortgage debt. (See Black River Bank v. Page, 44 N.Y. 453; Gottschalk v. Jungmann, No. 1, supra, 174; National Savings Bank of Albany v. Fermac Corp., 241 App. Div. 204, 207; affd., 266 N.Y. 443; Genesee Valley National Bank Trust Co. v. Collister, 248 App. Div. 671; Wells v. Mann, 45 N.Y. 327, 330; Newcomb v. Hale, 90 id. 326, 332; Stearns on the Law of Suretyship [4th ed.], § 244 et seq.; "The Doctrine of Pain v. Packard," 1928 Yale Law Journal, vol. 37, p. 971.) The order, therefore, striking out this defense and directing judgment in respondent's favor was proper, and the judgment entered thereon should be affirmed, with costs. All concur. (The judgment is for plaintiff in an action to recover interest due on a bond and mortgage. The order grants plaintiff's motion to strike out defendant's affirmative defenses and for judgment on the pleadings.)