Opinion
March 12, 1974
Order, Supreme Court, New York County, entered July 12, 1973, denying defendants Louis Lazarus' (as executor of the estate of Max S. Melamed) and Ella Melamed's motion to dismiss the complaint, unanimously reversed, on the law, defendants-appellants' motion granted, the complaint dismissed and the action severed as to them. Defendants-appellants shall recover of plaintiff-respondent $60 costs and disbursements of this appeal. The complaint to foreclose the second mortgage fails to state a cause of action against these defendants. The first mortgage was held by Max and Ella Melamed, jointly. Louis Lazarus, upon the death of Max, became the executor of his estate. The estate has been closed and Ella Melamed is the sole holder of the first mortgage, and only she excuted the extension agreement and then on the same terms and conditions set forth in the first mortgage. The extension did not require plaintiff's consent and consequently cannot form a basis for a cause of action.
Concur — Markewich, J.P., Nunez, Murphy, Tilzer and Capozzoli, JJ.