Kirch Holding Co. v. Jackson Hill Development Corp.

Order granting motion of defendant Avalon Construction Corporation to dismiss original complaint and amended complaint, and order granting motion of defendant Jackson Hill Development Corporation for judgment on the pleadings, reversed upon the law, with ten dollars costs and disbursements, and motions denied, with ten dollars costs, with leave to Avalon Construction Corporation to answer within twenty days from service of a copy of the order herein. We are of the opinion that the obligation of defendant Avalon Construction Corporation under the contract survived the execution and delivery of the mortgage, and that that defendant was not relieved therefrom by the provision incorporated in the mortgage that the mortgage should be a lien for the amount due, which was exclusive of the amount which it agreed to advance, since this clause was surplusage and would have been implied in law. As to respondent Jackson Hill Development Corporation, the allegation in the complaint that it agreed to and did assume the obligation contained in the mortgage is sufficient. The facts constituting due performance by the plaintiff are specifically alleged. Lazansky, P. J., Kapper, Hagarty, Seeger and Carswell, JJ., concur.