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Jackson Heights Apartment Corporation v. Staats

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1947
272 App. Div. 780 (N.Y. App. Div. 1947)

Opinion

April 22, 1947.


In an action upon a bond, order denying plaintiff's motion for summary judgment, and granting defendants' cross motion for dismissal of the complaint, and the judgment entered thereon, reversed on the law, without costs, defendants' cross motion denied, plaintiff's motion granted, without costs, to the extent of directing judgment in its favor for the installments of interest which accrued during the period from September 18, 1940, and September 1, 1944, and the matter remitted to Special Term to enter a judgment accordingly. At the time the alleged cause of action accrued on default of payment of interest on October 1, 1932, the bond was secured by mortgage and, notwithstanding the lien of that mortgage was extinguished thereafter by sale of the mortgaged property in foreclosure of a prior mortgage on November 17, 1943, the controlling Statute of Limitations is section 47-a of the Civil Practice Act, under which the action, insofar as it relates to principal, was barred on September 1, 1944. ( Kirschner v. Cohn, 270 App. Div. 126.) The complaint, however, states a good cause of action for the installments of interest (not barred by section 47-a of the Civil Practice Act) for the period of six years before the commencement of the action (Civ. Prac. Act, § 48) to the termination of the limitation period as to principal, or between the 18th of September, 1940, and the 1st of September, 1944. ( Kirschner v. Cohn, supra; Ernst v. Schaack, 271 App. Div. 1012.) Hagarty, Acting P.J., Carswell, Johnston, Nolan and Sneed, JJ., concur.


Summaries of

Jackson Heights Apartment Corporation v. Staats

Appellate Division of the Supreme Court of New York, Second Department
Apr 22, 1947
272 App. Div. 780 (N.Y. App. Div. 1947)
Case details for

Jackson Heights Apartment Corporation v. Staats

Case Details

Full title:JACKSON HEIGHTS APARTMENT CORPORATION, Appellant, v. FLORENCE W. STAATS et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 22, 1947

Citations

272 App. Div. 780 (N.Y. App. Div. 1947)

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