Opinion
December 29, 1949.
Appeal from Surrogate's Court of Sullivan County.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Santry, JJ.
The evidence is sufficient to justify the finding that there was no unauthorized extension of the mortgage. The guarantee was one of payment and not merely of collectibility ( Stillman v. Northrup, 109 N.Y. 473, 481). The property had been sold under foreclosure to satisfy a prior mortgage. There was evidence to support the finding that its market value was less than the amount of the prior lien and that there was no equity remaining out of which the debt herein involved could be satisfied. Moreover, since the security was nonexistent, it was unnecessary to offset the value of the property against the debt. ( Weisel v. Hagdahl Realty Co., 241 App. Div. 314; McRae v. Hummel, 250 App. Div. 873.) Since the claim was filed less than a year after default in the payment of interest, the Statute of Limitations was not violated. ( Matter of Schorer, 272 N.Y. 247. ) Decree unanimously affirmed, with costs.