Summary
In Allerwan, the Court of Appeals reversed this Court's determinations that a second mortgagee's claim to surplus money under its mortgage was valid and superior to the claim of the heirs of the owner of redemption, and that "the filing by the [second mortgagee] of its claim to the surplus moneys constituted a commencement of the proceeding and preserved the lien of its mortgage thereon" (Allerwan Co. v. Hermann, 237 App.Div. 900, 900, 262 N.Y.S. 159, revd 262 N.Y. 625, 188 N.E. 93).
Summary of this case from Nyctl 1997-1 Tr. v. StellOpinion
Submitted June 13, 1933
Decided July 11, 1933
Appeal from the Supreme Court, Appellate Division, Second Department.
Bernard Cowen for appellants.
Louis Timberg, Rubin Mazel and Jacob Radzivill for respondent.
Order of the Appellate Division reversed, with costs in this court and in the Appellate Division, and order of the Special Term affirmed, upon the ground that the filing of the notice of claim to the surplus money by the Superintendent of Banks on December 11, 1919, was not the commencement of an action or special proceeding on the bond or mortgage in question and that, therefore, the claim of the Union Bank was barred under section 47 of the Civil Practice Act. No opinion.
Concur: POUND, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN and CROUCH, JJ. Not sitting: HUBBS, J.