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Preziosi v. Buonaccorsi

Decided: October 19, 1951.

REMIGIO PREZIOSI, PLAINTIFF-APPELLANT,
v.
LENA BUONACCORSI, AS ADMINISTRATRIX OF JOHN BUONACCORSI, DECEASED, AND ALBERT DE CESARE, DEFENDANTS-RESPONDENTS



McGeehan, Jayne, and Wm. J. Brennan, Jr. The opinion of the court was delivered by Jayne, J.A.D.

Jayne

[16 NJSuper Page 16] The associated events from which this litigation has developed can be more informatively revealed if stated in a chronological sequence.

On February 25, 1927, John Buonaccorsi, who died during the pendency of this action, and Albert DeCesare executed and delivered to the plaintiff a bond conditioned for the payment of an indebtedness of $2,000 on March 1, 1929, and to secure the payment of the bond they executed and delivered to the plaintiff an accompanying real estate mortgage of even date.

On February 2, 1928, the same parties executed and delivered a bond and mortgage to the Trust Company of New Jersey evidencing a debt of $4,500. The two mortgages encumbered the same premises, but by agreement the plaintiff's mortgage was subordinated to the lien of the mortgage of the Trust Company.

On November 25, 1931, the mortgagors entered into an agreement with the plaintiff extending the time for the payment of the balance of the bond and mortgage debt due to the plaintiff to January 1, 1933.

Thereafter the Trust Company foreclosed its mortgage and in November, 1937, the mortgaged premises were sold by the sheriff and the lien of the plaintiff's mortgage was extinguished.

On February 1, 1950, the plaintiff instituted this action against the defendants to recover the unpaid balance of $1,000 of the original indebtedness with accumulated interest and sought to erect his alleged cause of action upon the terms of the extension agreement as if disassociated from the obligation of the bond. The plaintiff was unsuccessful and judgment was entered in favor of the defendants.

On May 9, 1942, the following statute became effective, L. 1942, c. 172 (R.S. 2:65-7.1):

"Where a bond and a mortgage shall be or have been given for the same debt and the lien of the mortgage has or shall be extinguished by the foreclosure of a prior mortgage, action on the bond shall be commenced within one year from the date of the confirmation of the sale of the mortgaged premises whereby the lien of said mortgage was or shall be extinguished, except in cases in which the lien of the mortgage securing payment of a bond has been so extinguished prior to the taking effect of this act [ R.S. Cum. Supp. 2:65-7.1 to

2:65-7.3], in which cases action upon said bond shall be commenced within one year after this act [ R.S. Cum. Supp. 2:65-7.1 to 2:65-7.3] shall take effect, unless previously barred, and all such actions not commenced within either of said periods, as the case may be, shall be thereafter completely and forever barred for lapse of time, but the time during which any application for surplus moneys arising from the foreclosure of such prior mortgage shall be in litigation, up to the time of the final determination of such litigation, shall not be taken or computed as part of any such period of one year."

The trial judge was of the opinion that the statute clearly encircled the factual circumstances of the present action and constituted a barrier against its prosecution. Our initial inquiry is pursued to ascertain the essence and inner reality of the present action. Is it intrinsically an action on the bond in masquerade dress, or is it based upon an independent primary obligation? Cf. Schumann v. Fidelity Union Trust Co. , 127 N.J. Eq. 249 (E. & A. 1940).

The agreement of November 25, 1931, must therefore be attentively scrutinized. We observe that the parties have entitled it "Extension Agreement." A full transcription of it follows with emphasis indicated on those words ...


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