New York Court of Appeals, 1966

Copp v. Sands Point Marina, Inc.

New York Court of Appeals · Decided May 5, 1966 · Scileppi

17 N.Y.2d 291; 217 N.E.2d 654; 270 N.Y.S.2d 599; 1966 N.Y. LEXIS 1375

Cases that cite this one

42 later published cases cite this decision. The 25 that cite it most often are listed here.

Macris v. Experian Information Solutions, Inc. (District Court, W.D. New York 2021)
Westnau Land Corp. v. U.S. Small Business Administration, as an Agency of the United States of America (2d Cir. 1993)
Contemporary Mortgage Bankers, Inc. v. High Peaks Base Camp, Inc. (District Court, N.D. New York 1993)
First Fidelity Bank, N.A. v. Best Petroleum, Inc. (District Court, S.D. New York 1991)
United States v. Whitney (District Court, W.D. New York 1985)
In re Hartsdale Assoc. (District Court, S.D. New York 1978)
Bloor v. Hartsdale Associates (District Court, S.D. New York 1978)
Mazur Bros. Realty, LLC v. State (N.Y. Ct. Cl. 2008)
In re Mill Creek Phase 1 Staten Island Bluebelt System (Appellate Division of the Supreme Court of New York 2007)
Fischer v. MMRR Construction Corp. (Appellate Division of the Supreme Court of New York 1994)
In re County of Rockland (Appellate Division of the Supreme Court of New York 1991)
Wyoming County Bank & Trust Co. v. Kiley (Appellate Division of the Supreme Court of New York 1980)
Matter of Willow Ridge Country Club (TD Bank, N.A.) (Appellate Division of the Supreme Court of New York 2025)
Axos Bank v. 64-03 Realty LLC (District Court, E.D. New York 2024)
Freedom Mortgage Corporation v. Herschel Engel , Ditech Financial v. Santhana Kumar Nataraja Naidu, Juan Vargas v. Deutsche Bank National Trust Company, Wells Fargo Bank, N.A., v.Donna Ferrato (N.Y. 2021)
Trust v. Barua (Appellate Division of the Supreme Court of New York 2020)
Oakdale III, LLC v. Deutsche Bank Natl. Trust Co. (Appellate Division of the Supreme Court of New York 2020)
Commonwealth Land Tit. Ins. Co. v. Prado (Appellate Division of the Supreme Court of New York 2019)
R. Kenneth Barnard, as Chapter 7 Trustee of the Es v. Nationstar Mortgage LLC, as Servicing Agent for We (United States Bankruptcy Court, E.D. New York 2019)
Weiss v. Phillips (Appellate Division of the Supreme Court of New York 2017)
Weiss v. Phillips (Appellate Division of the Supreme Court of New York 2017)
Wells Fargo Bank, N.A. v. Goans (Appellate Division of the Supreme Court of New York 2016)
Urban Equity Partners, LLC v. Aribisala (Appellate Division of the Supreme Court of New York 2016)
BERO FAMILY PARTNERSHIP v. ELARDO, DONALD (Appellate Division of the Supreme Court of New York 2014)
Bero Family Partnership v. Elardo (Appellate Division of the Supreme Court of New York 2014)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Scileppi, J.

In November, 1958 the defendant corporation executed a note secured by a purchase-money mortgage for $103,500, with interest thereon at 5%. The principal was due five years from the date of execution, and the interest was payable semiannually. The plaintiffs bring this action on the note to recover $5,175, representing two unpaid interest payments, each $2,587.50. The first payment was due on November 21, 1962, the second on May 21, 1963.

The defendant admits the making of the note and the nonpayment of the interest. In defense, it urges that, since, after a condemnation proceeding, title vested in the Town of North Hempstead on October 8, 1962, the plaintiffs are only entitled to a statutory rate of interest at 4% (General Municipal Law, § 3-a, subds. 2, 3), and it may only be recovered by proceeding against the condemnation award, when it is made.

Plaintiffs’ motion for summary judgment was denied at Special Term. The Appellate Division, two Justices dissenting, reversed and granted the motion. We affirm.

It is fundamental that the holder of a note (or bond) and mortgage has two remedies: one at law in a suit on the debt as evidenced by the note, the other in equity to foreclose the mortgage (Seaman’s Bank for Sav. v. Smadbeck, 293 N. Y. 91, 95; Dudley v. Congregation of St. Francis, 138 N. Y. 451, 457). The note represents the primary personal obligation of the mortgagor, and the mortgage is merely the security for such obligation (see Matter of Wilbur v. Warren, 104 N. Y. 192,197). When the sovereign affects the relationship between the mortgagor and the mortgagee by means of condemnation proceedings, the law substitutes the condemnation award for the security previously provided by the mortgage (Muldoon v. Mid-Bronx Holding Corp., 287 N. Y. 227, 231). In other words, the lien on the mortgaged property has been transferred to the condemnation award. Chief Judge Lehman, writing for this court in Muldoon, specifically left open the question presented here, i.e., *294whether, after the condemnation of mortgaged property, the holder of the note may assert his rights against the mortgagee in an action on the note and not be circumscribed by the change of the status of the security (287 N. Y. 227, 231).

Since only the mortgage lien is affected by the condemnation — a proceeding by which the sovereign obtains the property free from incumbrances—we hold that the holder of the note may sue at law thereon and, in so doing, may recover interest at the rate specified therein.

Special Term’s exclusive reliance on Matter of County of Westchester v. P. & M. Material Corp. (35 Misc 2d 197, affd. 17 A D 2d 822) was erroneous because that case involved not an action on the note but an attempt by a mortgagee to enforce its lien against the award before it was paid to the owner of the parcel.

The order appealed from should be affirmed, with costs.

Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke, Bergan and Keating concur.

Order affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.