NANSEN v. HOLLOWAY,266 App. Div. 1045(1943)
FREDERICK O.R. NANSEN, Individually and on Behalf of All Others Similarly
Situated, Appellant, v. DAVID T. HOLLOWAY et al., Respondents.
Appellate Division of the Supreme Court of New York, Third Department.
Appeal from Supreme Court.
The judgment partially appealed from declares that the deed is a mortgage which became due on October 10, 1941, and upon which there is due and unpaid as of March 1, 1943, the sum of $3,025.72, said Mary P. Holloway now being the mortgagee in possession, and which said mortgage is second and subsequent to a mortgage on the same premises given by Mary P. Holloway to Arthur M. Leonard and wife for $5,500. The judgment directs that no costs be awarded to either party. The deed in question was given by the wife of plaintiff Frederick O.R. Nansen to the wife of the principal stockholder of the Binghamton Standard Materials Corporation, to which the plaintiff Nansen was then indebted. It was given pursuant to a written agreement which provided, among other things, that Mrs. Holloway was to retain title to the premises until Nansen's entire indebtedness was paid. The trial court found that the deed was in effect a mortgage and no party has appealed from this portion of the judgment. This finding was entirely in accord with the facts. The principal questions here involved relate to monies paid out by Mrs. Holloway as a mortgagee in possession to complete the then unfinished double house on the premises, make it rentable and then rent it. These items were held to be necessary for the preservation and beneficial occupancy of thePage 1046property, namely: heat control, gas range, garage and general completion expenses. We find no error in the conclusions of the trial court with respect to the necessity and reasonableness of these items. Judgment modified by awarding costs to the plaintiff in the court below and as so modified affirmed, with costs to respondent against the appellant. All concur.