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Defendant, by John F. Foley, its attorney, answering the complaint herein, alleges:
First: It denies any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph of the plaintiff's complaint known and designated as “2”.
Second: It denies each and every allegation 39 contained in paragraph of the plaintiff's complaint known and designated as “3”.
Third: It denies each and every allegation contained in paragraph of the plaintiff's complaint known and designated as “5”, except that the defendant admits the execution and delivery of its certain bond No. 5012976, but for the terms and provisions thereof begs leave to refer to the original of said bond on the trial of this action.
Fourth: It denies any knowledge or infor
mation thereof sufficient to form a belief as to each and every allegation contained in paragraphs of the plaintiff's
the plaintiff's complaint known and designated as “4”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13” and “14”.
Fifth: It denies each and every allegatioa contained in paragraph of the plaintiff's complaint known and designated as “16”.
AS AND FOR A FIRST DEFENSE.
Sixth: That on or about the 30th day of April, 1930, at 1440 Broadway, the defendant duly tendered to the plaintiff's attorney the sum of Fifteen thousand Dollars ($15,000), together with accrued interest from the 7th day of April, 1930, together with the costs of this action to date, making in all the total sum of Fifteen thousand and seventy-four dollars and 19/100 Dollars ($15,074.19). in payment of said claim alleged in the complaint, but plaintiff's attorney refused to receive the same.
Seventh: That defendant has ever since remained ready and willing to pay to the ntiff said sum; but the plaintiff has hitherto refused to receive the same.
Eighth: That defendant has heretofore and on the 1st day of May, 1930, pursuant to an order of this Court, duly paid said sum of Fifteen thousand and seventy-four dollars and 19/100 Dollars ($15,074.19) into this Court in this action to be paid to the plaintiff, of which payDecision and Findings
ment notice has been duly given to the plaintiff.
WHEREFORE, defendant demands judgment against the plaintiff dismissing the complaint herewith, with costs to the defendant from the 1st day of May, 1930.
JOHN F. FOLEY,
Office & P. O. Address,
City of New York.
(Verified by Arthur P. West, Vice
President of Defendant Corporation on the 2nd day of May, 1930.)
Decision and Findings
The above entitled action having duly come
Decision and Findings
on for trial on January 20, 1931, at Special Term, Part I, of the above named Court, by consent of the parties, a jury trial having been waived, and the plaintiff having appeared by BENJAMIN BARONDESS, his attorney, and the defendant having appeared by John F. FOLEY, its attorney, and the proofs of the parties having been heard, and a partial summary judgment in favor of the plaintiff, having been rendered herein, pursuant to order of this Court, dated May 19, 1930, for the sum of $15,074.19, on the 12th day of June, 1930, and said partial summary judgment having been satisfied prior hereto,
Now, on motion of BENJAMIN BARONDESS, attorney for plaintiff, I hereby find and decide as follows:
FINDINGS OF FACT
1. Prior to January 28, 1929 an action had 48 been brought by this plaintiff against the Nobile
Norge Building Corporation and the Hill-Castle Construction Co., Inc., both domestic corporations, having their offices in the City of New York, and against others, in the Supreme Court, Westchester County, to foreclose certain mortgage, as to a balance due and owing thereon of $15,000 and interest, made by the HillCastle Construction Co., Inc., as mortgagor, to the plaintiff herein, as mortgagee, and covering property then owned by the said NobileNorge Building Corporation, located in the County of Westchester, State of New York.
Decision and Findings
2. That on said 28th day of January, 1929, an agreement of settlement of said foreclosure action was entered into by and between the plaintiff herein, on the one hand, and the HillCastle Construction Co., Inc. and the NobileNorge Building Corporation, on the other hand, and in by said agreement, it was stated that the Nobile-Norge Building Corporation had offered to cause to be executed and delivered to the plaintiff, a surety company bond, guaranteeing to the plaintiff, payment of any deficiency which might result in any action, brought to foreclose said mortgage. Plaintiff, in said agreement, in consideration of the foregoing, among other things, agreed to discontinue said foreclosure action, so brought by him, and extended the time of payment of the principal sum of $15,000 and interest, secured thereby to May 1, 1929, and plaintiff, further, in said agreement, acknowledged receipt of defendant's bond, guaranteeing payment to plaintiff of any deficiency, which might result in any action brought by the holder of said bond and mortgage.
3. That said settlement agreement of said foreclosure action was duly recorded in the Westchester County Clerk's Office on January 31, 1929, in Liber 2972 of Mortgages, page 280.
4. That in pursuance of said settlement agreement, and on or about the 29th day of January, 1929, the Nobile-Norge Building Corporation and the defendant executed, acknowledged and delivered to the plaintiff, a bond, a true copy of which is as follows: