Opinion
May, 1936.
Present — Lazansky, P.J., Carswell, Davis, Adel and Taylor, JJ.
(No. 1.) Motion for leave to appeal to the Court of Appeals from the order of this court dated April 24, 1936, affirming the order of the Special Term dated June 7, 1934, granted. The following questions are certified: (1) On the facts appearing in the record herein, did the withdrawal by the petitioner-mortgagee of control of the guaranteed bond and mortgage from the respondents Bond and Mortgage Guarantee Company and its rehabilitator, give said respondents any right of credit or offset against any subsequently asserted claim of the petitioner-mortgagee upon the contract of guaranty? (2) On the facts appearing in the record herein, did the withdrawal by the petitioner-mortgagee of control of the guaranteed bond and mortgage from the respondents Bond and Mortgage Guarantee Company and its rehabilitator, give said respondents the right to assert the then fair and reasonable market value of the real property covered by the mortgage as a credit or offset against any subsequently asserted claim of the petitioner-mortgagee upon the contract of guaranty? (No. 2.) Motion for leave to appeal to the Court of Appeals from the order of this court dated April 24, 1936, affirming the order of the Special Term dated May 20, 1935, granted. The following question is certified: On the facts appearing in the record was the proper rule adopted in fixing the value of the mortgaged property at the time of withdrawal of control of the guaranteed bond and mortgage?