Opinion
Argued February 14, 1985
Decided May 2, 1985
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Howard E. Levitt, J.
Joseph Schutzman for Son Fong Lum, appellant.
Matthew Dollinger for The Long Island Savings Bank, appellant.
Samuel Kirschenbaum for Domenico Antonelli, respondent.
Michael Permut for Yee Woo Lum and another, respondents.
Richard T. Farrell for Alfonso Duarte, respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs to defendants Domenico Antonelli, and Yee Woo Lum and Po Wah Lum (the "defendants Lum"), against plaintiff and defendant The Long Island Savings Bank.
The weight of the evidence more nearly comports with the findings at the Appellate Division ( 102 A.D.2d 258). We add only that there is no basis for recovery of attorneys' fees by the bank against the defendants Lum, or against defendant Antonelli. As to the defendants Lum, any such liability they might have had under the original mortgage was discharged when the mortgage was assumed, with an increased interest rate and term, by Antonelli ( see, 38 N.Y. Jur, Mortgages and Deeds of Trust, § 183). Nor can the bank now recover attorneys' fees against Antonelli, since it asserted no such claim against him below.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur in memorandum.
Order affirmed, etc.