Opinion
June 8, 1961
Shlivek Brin ( Max Shlivek and Saul S. Brin of counsel), for plaintiff.
John J. O'Connor, Albert, J. Schmuck and James M. Gilleran for defendant.
This is a motion by the defendant to set aside the decision herein dated May 16, 1961 and for a dismissal of the complaint. The defendant in support of its demand that the complaint be dismissed relies heavily on the case of Knapp v. Van Etten (55 Hun 428). That case was cited in defendant's memorandum after the trial. It was not overlooked by the court.
In that case it was held that the undertaking contained no agreement that the defendant would pay any deficiency arising out of the sale of the mortgaged property. By the statute such a provision was required. As I pointed out in my decision in the present case ( 28 Misc.2d 725), if a provision is absent from a contract it cannot be supplied by the courts under the guise of construction or interpretation (citing Wilson Sullivan Co. v. International Paper Makers Realty Corp., 307 N.Y. 20).
As to lack of proof of consideration that point is amply covered in my decision.
The defendant appears to have served a notice of appeal from the judgment herein.
The motion is in all respects denied, with $10 costs to the plaintiff.