Full text
New Rochelle Trust Company v. Norman H. Hinton and Frederick T. Kemple, as Executors, etc., of Frederick C. Kemple, Appellants Walter Ives, as Trustee under the Last Will and Testament of Elizabeth T. Watson v. Norman H. Hinton and Frederick T. Kemple, as Executors, etc., of Frederick C. Kemple, Appellants New Rochelle Trust Company and Others, as Trustees under the Last Will and Testament of John H. Trenor v. Norman H. Hinton and Frederick T. Kemple, as Executors, etc., of Frederick C. Kemple
Opinions in this case
- Majority — Close
- Dissent — Hagarty
Close, J. The defendants have appealed from three orders denying their motions to dismiss the complaints of the plaintiffs for failure to state facts sufficient to constitute a cause of action. The complaints are similar and may be summarized as actions brought by the obligees upon bonds secured by mortgages on real estate executed by the defendants’ testator some years before his death. In each action the amount sought to be recovered is the interest due and owing at the death of the obligor.
The complaints contain no allegation as to the contents of the will nor is there any allegation that the defendants’ testator was the owner 725 of the mortgaged premises at the time of his death. The ground urged by the defendants is that after the death of the mortgagor the real property is the primary security and that the interest must be paid by the heir or devisee. That may be so but the defense must be raised by answer. Upon these motions the pleadings are entitled to every fair inference and intendment.
(Madole v. Gavin, 215 App. Div. 299.) Consequently, no inference may be drawn that the defendants have a good and sufficient defense. If the defendants wish to raise the shield furnished by section 250 of the Real Property Law, or by the terms of the will, they must do so by answer. If, in any aspect, upon the facts stated, the plaintiffs are entitled to recover, the motion should be denied.
(Boston & Maine Railroad v. Delaware & Hudson Co., 238 App. Div. 191; Dyer v. Broadway Central Bank, 252 N. Y. 430.) There are such aspects here. The orders should be affirmed, with one bill of ten dollars costs and disbursements, with leave to appellants to answer within ten days from the entry of the order hereon.
Carswell and Johnston, JJ., concur; Taylor, J., concurs in result, being of opinion that if the allegations of each complaint are taken at their face value, a right of recovery of mortgage interest accruing in testator’s lifetime exists as matter of law; Hagarty, J., dissents and votes to reverse the orders and grant the motions, with opinion.