Opinion
Argued March 31, 1978
Decided May 11, 1978
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JOHN H. PENNOCK, J.
Robert L. Carnright for appellant.
Carroll J. Mealey and Thomas O. Kellogg for respondent.
MEMORANDUM.
In this case, where the parties are the original mortgagor and mortgagee, any intention to include the personalty within the embrace of the mortgage by its omnibus reference to "all the fixtures and articles of personal property, now or hereafter attached to or used in connection with the premises" is negated by the simultaneous execution of the separate security agreement covering "Furniture * * * and all equipment * * * owned by the debtor for use in connection with the maintenance and upkeep of the golf club and golf course" (cf. General Synod of Reformed Church v Bonac Realty Corp., 297 N.Y. 119; East Riv. Sav. Bank v 671 Prospect Ave. Holding Corp., 280 N.Y. 342). Consistently, the complaint did not allege that the mortgage covered the personal property, the referee's notice of sale on foreclosure did not enumerate it, the auctioneer did not offer it and the referee's report was completely silent on the subject.
Accordingly, the order should be affirmed, with costs.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.