Newman v. Gross , 1 A.D.2d 947 ( 1956 )

We fail to find a triable issue in the light of the documentary evidence which shows a clear liability on the part of the defendant to pay the amount claimed. By a written instrument defendant assumed the obligations of the chattel mortgage which evidenced the indebtedness upon which the plaintiffs sue. By assuming the mortgage, we think there was an intent to assume the obligation to make the payments called for in the mortgage; otherwise defendant could merely have taken subject to the chattel mortgage (Schley v. Fryer, 100 N. Y. 71). Even though it should be argued that the Schley case does not apply because there the defendant took “ subject to * * * mortgages * * * which the party * * * assumes ”, thus requiring some meaning to be given to the word “ assumes ”, in the present ease the intention of defendant to assume payment is clearly evidenced by the defendant’s assumption of all of the obligations of the sublease between plaintiffs and Mormac Bakers, Inc. That assumption was obviously written for the purpose of complying with the provision of the sublease which required the assumption not only of all of the terms of the chattel mortgage but also of all of the payments provided therein. Moreover, the defendant in an agreement for a new lease affirmed his liability “ on any and all promissory notes agreements assumption agreements, contract of sale or other instruments heretofore signed ” by him. The documentary evidence thus establishes that there is no triable issue. Order unanimously reversed, with $20 costs and disbursements to the appellants and the motion granted, and judgment is directed to be entered in favor of the plaintiffs for the relief demanded in the complaint, with interest and costs. Settle order on notice. Concur— Breitel, J. P., Rabin, Frank, Valente and Bastow, JJ.