Flyer v. Elms Realty Co.

Judgment modified by limiting to the sum of $3,799 the liability of the defendant, appellant, Alfred Gross, to both plaintiffs and defendant Sirkin for any deficiency that may arise on the sale of the property under foreclosure, and as so modified affirmed, without costs. The instrument of assignment from Gross to Sirkin, plaintiffs’ assignor, contained a guaranty which involves the question presented on this appeal as follows: “ I hereby personally guarantee all payments of principal and interest on the within mortgage, to the extent of Ten thousand three hundred sixty ($10,360) dollars.” Defendant Gross cannot be held liable beyond the difference paid on account of principal and interest, eoncededly $6,561, and the amount of his guaranty of principal and interest to the extent of $10,360, which is the sum of $3,799. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Hagarty, Scudder, Tompkins and Davis, JJ., concur; Lazansky, P. J., dissents, with the following memorandum: The guaranty *829includes all payments of principal and interest. Therefore, any sum remaining unpaid was subject to the guaranty up to the sum stated, $10,360. Settle order on notice.