The New York herald., 1877-08-26
IMPORTANT MORTGAGE DECISION.
LIABILITY FOR DEFICIENCY THROUGH DEPBE-
cIArIoN or pRopRRTY IN NOT YORECLOsINo

LIABILITY FOR DEFICIENCY THROUGH DEPBE-
CIATIoN OF pRoPKRTY IN NOT YoRECLosINa
AT MATURITY.
An important decision has just been rendered BY
Judge Reynolds involving aud Interesting
points as liability deficiency In not foreclosng
at maturity, tho mortgaged property In the meantime
having deprecated In value The decision IN the
suit OF Russell vs.. weinburg OF al The following Is
Judge Rey nolds' opiniou.-
Tho defendant, McCrum, after making tho mortgage
In SUIT conveyed the mortgagcd premises TO defendant
gage upon tho maturity OF the bond and mortgage
McCrum, having thus come into the possession Of
surety 81 ssque:sso n iorseose a"d coecs sno
debt on the ground that the premises which were
then sufficient TO satisfy the mortgage might dclme
ciatc so as to become an inadequate security. Tho
plaintiff neglected for year 10 commonce ms SUIT,
and the proof shows that although the promises
were OF su icent value TO pay the mortgage debt and
costs OF foreclosure time tho request was made
they have since far deprecated as 10 mako II alto
gether probable that there VIII be aenclency ater
applying tho proceeds OF the sale The question is
whether the defendant McCrum should be made liable
for such deficiency. Tho rule seems 10 be that II the
surety which equity and his duty TO the surety cnoins
him do, and tue surety Is injured by the omis
sion, the latter ought not to bc held. That duty
enjoius upon the creditor 70 enforce payment IRON
the party primarily liable, and II being requested ny
the party TO collect tho debt when u IL coectbe rom
such party by Of active diligence the creditor
refuses or negecs do II until II becomes uncollect
ble from the principal, such conduct ought to be u
surety 70 charge him With tho payment Of the debt
But failure tho urt OF the creditor TO comply with
the request Of tho surety 70 enforce payment rn
suits In actual injury TO him. and then only 70 the
extent Of such injury The sovcncy OF the debtor or
tho su nlcency OF tho fund at tho tme whom the re-
quest collect made and subsequent Insolvency
or insuficency are essential parts OF the de-
is1io By Sw o. rnoss p's On anu
Beekman rs n. y, 55z) Plaintiff clams, however.
that defendant McCrum has not brought himself
within the rulo releasing surotes. he not having
shown that the dofeudans Wcnberg Is nsolvcnt. nnd
that as 1t does not appear opt lhnt palnt'n may 90
McCrum is not shown 10 have sustained any injury
from the plaintiffs delay.
Tno answer to this is shat II out that the de-
0cicncy DO collected from Weinberg Il will be the
duty the piainti TO collect II, and in that case
there occasion for decree holding the defendant
the defendant McCrum should DO made liable he
would DO thcreby damuiAed through the plaintiffs
would thus DO compelled to make Tho mortgage
having been collectible out Of the property when tho
surety requested its collection he ought not not
now to be called upon to make up for
tho subsequent depreciation OF tue property,
and therefore there should not be any such direction
against him IN the judgment Such direction, II
eifectuai, would compel him to meet a deficiency
which would not have existed II the creditor (the
plantin) had complied with his reasonable request
There must be judgment for sale OF the promises
and making the defendant weinberg haoIo Ior any
deficiency.
Mr.. Rufus L. scott appeared for The plaintiff and
Mr.. Roger II. Lyon for defendant. McCrum.
KINGS COUNTY SURROGATE'S COURT.
During the past week the wills OF the following
named persons, deceased, were proved In the Kings
County Surrogato's Court, before A II. Dacy:-Jamcs
r. Kirkwood an William johnson, both OF the city Of
Brooklyn
Letters Of administration granted In the estates
OF the following deceased persons, viz Lucy
A. Mclaughlin, Of Jersey City, n. j.. Daniel Barnes.
James Ilngworth, Louisa Hcidonrcich, Joseph john
son. Catharine Cost,gau. Patrick Lee, Jonathan Il.
Peck wnifred Becker, Eliza Mulcahy, George Irwin,
solomon W. Sprait, ull Ot the city OF Brooklyn.
Letters OF guardianship OF tho persons aud estates OF
Achie Joan Constantin, Gustave Henry Coustantiu
and Julie Corinnc Constantn 10 Jean u. A Constan-
TIM OF Caiharine Bc;swangcr John Bciswangor, Lena
Beiswangcr and Frederick Beiswangcr to John Bcs-
wauger of George Horn 70 Appoionea Fc.zcr; Of Hon
rictta smith TO Alctta A. Hartough OF James Mul.
cahy and Thomas Mulcahy to Elizabeth Kc!ly, all OF
the county OF Kings
THE FIRSCHLAND DIVORCE SUIT.
Motion granted In tho Brooklyn City Court SUBJ
stituting BALDWIN T. Strauss counsel for Mrs. John
Firschlapd IN tho place Of Colonel Henry Wcyenborg