From Casetext: Smarter Legal Research

Finnegan v. Brown

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 13, 1973
43 A.D.2d 812 (N.Y. App. Div. 1973)

Opinion

December 13, 1973

Appeal from the Erie Special Term.

Present — Goldman, P.J., Moule, Cardamone, Simons and Henry, JJ.


Order unanimously reversed, with costs and motion denied. Memorandum: Special Term dismissed appellants' complaint and vacated a lis pendens upon their property at 165 Columbus Avenue in Buffalo despite appellants' argument that the deed they gave to respondent, the attorney who prepared the agreement of sale, was only to serve as security for a loan to appellants to avoid foreclosure upon their home. This was error. The record reveals that the equity which respondent purchased for $1,873 was worth from $5,000 to $10,000, depending upon whose appraisal figures are used. In any case, such disparity could point to something other than a sale of these premises (38 N.Y. Jur., Mortgages and Deeds of Trust, § 26). As we held King v. WNY Holding Corp. ( 38 A.D.2d 685): "Whether a deed, absolute on its face, is a mortgage depends upon the intent of the parties ( Matter of Newcourt Realty Holding Corp. v. Gabel, 28 A.D.2d 704; Real Property Law, § 320) and, as such, presents a question of fact requiring a trial".


Summaries of

Finnegan v. Brown

Appellate Division of the Supreme Court of New York, Fourth Department
Dec 13, 1973
43 A.D.2d 812 (N.Y. App. Div. 1973)
Case details for

Finnegan v. Brown

Case Details

Full title:JAMES FINNEGAN et al., Appellants, v. GORDON M. BROWN, Respondent

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 13, 1973

Citations

43 A.D.2d 812 (N.Y. App. Div. 1973)

Citing Cases

Yarde v. Artoglou

Although it is not necessary that a deed conveying ownership of property be recorded (see Cayea vLake Placid…

Reiner v. Reiner

Plaintiff and her husband resumed making mortgage payments in 1980. ¶ Special Term's approach to the…