Opinion
Submitted November 23, 1999
January 27, 2000
In a proceeding, inter alia, to discharge a mortgage held by the defendants Home Credit Corp. and Home Loan and Investment Bank, FSB, on certain real property owned by a testamentary trust, Home Credit Corp. and Home Loan and Investment Bank, FSB, appeal from a decree of the Surrogate's Court, Nassau County (Radigan, S.), dated October 21, 1998, which, after a hearing, granted the petition and permanently enjoined them from foreclosing on the mortgage and/or collecting on the note against the trust.
Ernest J. Belfi, Rockville Centre, N.Y., for appellants.
Riebesehl, Keegan Horowitz, Garden City, N.Y. (David V. Keegan of counsel), for petitioner-respondent.
CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY and NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the decree is affirmed, with costs.
It was the duty of the appellants to inquire as to whether the proceeds obtained through the use of a trust asset were to be used for the ultimate benefit of the trust (see, Dye v. Lewis, 40 A.D.2d 582, affd 31 N.Y.2d 1012 ). Since the appellants had reason to know that the conveyance was made in contravention of the trust, the transaction is void (see, EPTL 7-2.4; see also,National Surety Co. v. Manhattan Mortgage Co., 185 App. Div. 733, 736-737, affd 230 N.Y. 545 ; Boskowitz v. Held, 15 App. Div. 306, 310-311, affd 153 N.Y. 666 ).
The appellants' remaining contentions are either without merit or are not properly before this court as they are raised for the first time on appeal (see, Green Point Sav. Bank v. Oppenheim, 217 A.D.2d 571 ).
O'BRIEN, J.P., S. MILLER, McGINITY, and SMITH, JJ., concur.