Plaintiff emphasizes that defendant’s fraud occurred before execution of the asset sale agreement and that, therefore, “Pramco is not claiming that the bank fraudulently breached the Asset Sale Agreement[;] [r]ather, the fraud occurred *367beforehand.” (Plaintiffs reply mem at 12.) But this argument ignores the fact that the terms of sale memorandum, upon which plaintiff relies for this argument, was expressly made a part of the contract documents. Accordingly, the duty to disclose the documents referenced arose from the terms of the parties’ agreement only, thus bringing into play the Clark-Fitzpatrick rule. Contrary to plaintiffs arguments, drawn from Deerfield Communications Corp. v Chesebrough-Ponds, Inc. (68 NY2d 954 [1986]) and First Bank of Ams. v Motor Car Funding (257 AD2d 287 [1st Dept 1999]), plaintiff fails to refer to “a breach of duty separate from, or in addition to,” that created by the contract documents. (257 AD2d at 291.) By its very terms, the proposed fifth cause of action refers to a duty having its sole origin in the contract documents. Given the tenor of the transaction, a distressed loan sale at auction, and the terms of the contract, defendant had no other duty to supplement the review files other than the duty prescribed in the contract documents. According to the contract documents, defendant made no representation concerning the absence of check <mask> or the absence of a reduction in the collateral inventory valuation. (Cf., J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144 [2007].) That distinguishes defendant’s warranties here from those in First Bank (257 AD2d at 292 [“warranties certified that as of the date of sale to First Bank, any individual loan would comply with certain underwriting guidelines”]). Accordingly, the only duty at issue sprang from the contract documents themselves.


It was claimed by the counsel for the appellant on the argument that this insurance contract was a gambling contract, and that the plaintiff was in effect betting on the chances of the continuance of her hus*317band’s life beyond tbe <mask> period of ten years, and that the company had bet against her. We cannot assent to this view. All insurances are based more or less on the doctrine of chances, but they are by no means gambling contracts, unless they are wager policies, and then they are void in law. But this consideration need not be further pursued, for the plaintiff can obtain no advantage from the position even if it be tenable. Her action is not based on the law against gaming, and she is in pari delicto even if the contract was immoral and void.


The word was introduced into this country about' 1797. Before that time houses for the entertainment of travelers in this city were at first called inns, and afterward taverns and coffee-houses. In 1794, an association, organized upon the principle of a <mask>, erected in Wall street what was then a very superior house for the accommodation of travelers, called the Ton-tine Coffee-house; the success of which led to the formation of *21another company for the erection of one upon a still more extensive scale in Broadway. This structure, which was called the Tontine Tavern, was built about 1796, upon the site of what had been a famous tavern or coffee-house in colonial times, and from the extensive accommodation it afforded, and the superior character of its appointments, it was then, and for many years afterward, the most celebrated establishment of the kind in the county. There was at that period a rage for every thing French. The city was filled with refugees from France and from the French West India possessions, whose residence among us produced a great change in our social habits, amusements, and tastes (Watson’s Annals, 209), while a fierce party strife prevailed between those who advocated the principles of the French Revolution and those who condemned them. The French national airs were sung in the streets; men mounted the tri-color cockade ; and the proprietors of the new tavern, falling in with the popular current, gave a French name to their establishment, by changing it from the Tontine Tavern to the City Hotel. The new word was afterward adopted by the proprietors of other houses for the entertainment of travelers in this and neighboring cities, and, becoming general, found its way into American dictionaries. Allison, one of the earliest of American lexicographers, 1813, defines it to be “an inn of a high grade, a respectable tavern.” Webster calls it “a house for entertaining strangers or travelers,” and says that “ it was formerly a house for genteel strangers or lodgers,” but that “ the name is now (1840) given to any inn.” Worcester’s definition (1846) is “ a superior lodging-house with the accommodations of an inn; a public house; a genteel inn; an inn,” and in the last edition of Webster, 1864, there is given an addition to the previous general definition: “ An inn; a public house, especially one of some style or pretensions.”


“We acknowledge that policy No. on the life of Edmund Hayes has been placed with the Society as security for a loan of $ subject to the conditions of the Society’s loan agreement, duly executed by the applicants for such loan. This loan will become due and upon repayment of same said policy will be returned. “ In the event of the death of the insured before the maturity of the loan, any indebtedness to the -Society by reason hereof will be deducted from the amount payable under the policy, the balance being payable to the person or persons legally entitled thereto, in accordance with the terms of the policy. “ In the event of the cancellation of the policy owing to default in the repayment of the loan when due, the excess value thereof above the amount of the loan and interest shall be paid on demand to the person or persons legally entitled thereto, should its surrender value exceed the amount of the loan with interest thereon to date of settlement at 5%.” The checks in payment of the loans were made payable to the order of Edmund Hayes and Mary H. Hayes. The amount of the loan in each case was almost exactly the amount of the cash value of the policy on the date of the loan. Thus, on each of three semi-<mask> policies, the cash value was $5,518.10, and the loan was $5,515; on one of the paid-up policies the cash value was *810$12,992.61, and the loan was $12,990; on the other paid-up policy the cash value was $4,590, and the loan was $4,590.


On the trial it appeared that the application was made to the husband of the plaintiff by an agent of the company who produced a pamphlet issued by the company from which he read portions himself and allowed the husband to read it also. The counsel for the plaintiff read from this pamphlet a description of the <mask> principle, and an explanation of its peculiarities and advantages substantially as they were set out in the complaint. The counsel for the plaintiff then asked her husband, who was a witness for her, this question: "What further representations did he (the agent) make to you at the time in regard to the advantages of this tontine investment plan as compared with other plans of insurance ?


The claims of <mask> Shops ($348) and Moyer Electric ($311) are directed to be paid and the balance remaining after proper fees and expenses is to be paid to De Nuccio. The disposition above made leaves insufficient funds to pay the full amount of De Nuccio’s claim for return of the purchase price, and therefore it is unnecessary to determine the rank of his claim for improvements made.


Clark states, that in part payment of the bond of $16,000 executed by him to Stewart as sectirity for the payment of the consideration money of the west half of the <mask> CoffeeHouse, he was to procure the discharge of an incumbrance of $7,500 existing on the whole lot at the time of the purchase. This he did in September, 1816, about one year after his purchase, by executing a mortgage of the part of the lot deeded to him for the amount of the former incumbrance, including the interest that had accrued since the purchase, accompanied with his individual bond. Lansing paid to Stewart some time afterwards one half of this incumbrance, which was about $3,750. The bond of $16,000 given by Clark to Stewart for the consideration of the purchase, was delivered up and cancelled without the payment by Clark directly thereon of one dollar, and without Stewart’s having received any thing for. his interest in the Tontine Coffee-House, except one half the amount of the incumbrance from Lansing. Clark had done nothing towards satisfying that bond but a transfer to the half purchased by him the incumbrance due on the whole lot at the time of the sale, and to give his personal obligation to Roberts for the future payment thereof. For the property purchased by Clark for $16,000, he has paid or become liable to pay the incumbrance of $7,500,-which, when it was settled in 1816, amounted to $7,950, and Stewart, who had an interest which was sold for $12,250 beyond " his proportion of the incumbrance, has received (and that from Lansing) about $3,750, and the balance amounting to $8,500 remains in the hands of Clark, and all legal claim for it is extinguished, and it is contended by the cancel-ling of the bond of $16,000 within twelve months of Stewart’s bankruptcy ; a bankruptcy which leaves him deficient in means to satisfy his creditors to the amount of $70,000. If these transactions are as they appear to be, our system of jurisprudence would merit but little commendation if it was so defective that no relief could be afforded to the' defrauded creditors. But with the amplest means of dispens*642ing relief in such cases, it can only be effectually sought ¿n manner established for administering it. Has the appellant shewed a clear right to relief, and is he seeking it ™ an all°wa-ble way ?


On this policy has been engrafted the system called <mask>, under which that surplus, instead of being divided and paid to the policyholder, goes to a fund called the tontine fund, the amount being credited to the particular class to which the policy belongs. When a policy lapses the reserve value becomes profits, and under the scheme such profits are divided among the surviving holders of the various classes. Such in substance is the tontine scheme, and such it was represented to be by the pamphlet issued by the company and read in evidence on the tidal of this action. The annexation of the plan to the policy did not invade nor vary the legal effect of that instrument as a policy of insurance for life. It merely constituted a consent for the retention of the surplus dividend by the company during the tontine period, at the termination of which the accumulations .from all sources are to be divided among the surviving holders of policies of that class in existence. The representations complained of had reference only to the surplus dividends, left *318with the company by consent of the insured for accumulation during the tontine period. The allegation of the complaint, however, is that the fund arising from premiums paid upon policies belonging to the tontine class were to be kept separate and distinct from premiums paid upon other classes and kinds of policies issued by the defendant, and would be separately kept invested and accumulated in trust for the benefit of the surviving members of the tontine class. If such representations were made by the agent to the plaintiff and her husband, they had full information that the tontine scheme contemplated nothing of that kind.


On the 17th of November, 1873, Canfield obtained a loan of $3,000 from John W. lerdón, and assigned to him the policy as collateral security for that sum, with interest, and notice of such assignment was given to the insurers. Subsequently, and in the year 1877, before the expiration of the <mask> period, the policy was assigned by the children named in it and by the insured to the defendant herein, and possession of it given him. On the 19th of August, 1883, the policy became due according to its terms, and. the first assignee, Eerdon, sought to get the amount from the society, and made a demand for it, but payment was refused, and he thereupon commenced an action in this court to compel payment. *573The defendant also commenced an action against the society to compel payment to him, and the society thereupon instituted proceedings to relieve themselves by payment of the sum into court, leaving the disputants to settle their controversy between themselves.


In the examination of the case on the other theory it is to be remarked at the time of the commencement of this action the ton-tine period of ten years had not expired. So that she had no interest in the <mask> fund and it could not appear that she ever would have, for her husband might not survive this tontine period, until the expiration of that period in the lifetime of her husband she had no rights in the funds. Both the expiration of the period and the survival of her husband were conditions precedent to the accruing of any rights to the plaintiff in such fund.


Again, these representations taken at their worst, related only to the future. No fact was misrepresented, and the sole claim is that in the future the <mask> fund was to be invested and handled separately. That at most would constitute a condition subsequent in the contract for the violation of which the plaintiff might obtain appropriate redress. The plaintiff has no interest in the mode of investing and handling these funds. Her interest is subserved if the persons insured on this plan are divided into classes and separate and accurate accounts are kept with each class on the books of the company. It appeared in evidence that this had been done, and that each policy was credited annually with the surplus dividend it would have received each year if had not been a tontine policy. Also that when any policy in the class lapsed for non-payment of premiums or any other cause, or matured by death, the amount of its accrued dividends so credited, augmented by compound interest, was credited to the class. This is in full compliance with the declaration in the pamphlet that the annual surplus arising *319from the policies in each class will be set aside for accumulation. So it appeared that all the legal rights of the plaintiff were properly guarded and secured.


It is contended on the part of the appellant that if Stewart was not a joint purchaser with Clark, he subsequently acquired an interest in the premises. It will be necessary to consider whether such was the case, and if so, whether the interest he did acquire was of such a nature as to be available to the appellant in the manner he seeks to make it available. Both Clark and Stewart admit in their answers that títere was an agreement subsequent to the purchase by Clark *648that they should be jointly interested in the premises. From ciajrik’s disclosures before Judge Miller, this agreement was entered into about the time the repairs were made, which was the year succeeding the sale. In his answer he states that after the purchase, but at what precise time he cannot tell, Stewart wished to take an interest in the premises, but he denies that he then assented to to any arrangement of that kind. He however says that he offered in September, 1818, to convey to Stewart one half of the lot purchased by him on his paying his proportion of the mortgage to Roberts, and of the éxpenses and interest: but he says Stewart made no decision until about the time of his failure, when he declined to accept it by reason of the depreciation in value of real estate in Albany, and of his pecuniary embarrassments. This statement, it will be observed, conflicts with that which he made on his examination before Judge Miller; for he then admitted there was an agreement about the time the repairs were made (which was in 1816) for Stewart to become a joint owner with him. It is also inconsistent with what he admits in his further answer; for in that he says Stewart proposed to purchase of him an undivided moiety of the west half of the old <mask> ; and that he prepared a conveyance for that purpose, which was to be executed after the adjustment of the expenses of repairs and of the mortgage, which was an incumbrance on the premises ; and that about that time Stewart delivered up the' §16,000 bond, and he cancel-led it. Taking these disclosures of Clark and uniting them with those circumstances which I have just considered, in relation to the question whether there was an agreement coeval with the first purchase that Stewart should have an interest in it, a bargain is clearly established, and the consideration therefor paid by Stewart.- It has not been pretended that the giving up of the bond was not done in fulfilment of this bargain. When it was entered into is quite uncertain. Clark’s statements on this point are contradictory. I am inclined to think it existed earlier than he has admitted in his answer, and as early as he stated in his testimony before Judge Miller. There are several reasons for believing that this arrangement was made about the time the incumbrance *649, was changed, which was in the beginning of September, 1816. On the second of that month Clark endorsed a receipt in full on his deed, which was signed by Stewart. This is stated in the receipt to have been done on a settlement. What settle- ■ ment could this have been ? Not that of the copartnership concerns, for that settlement was not made till 1819. If the . bond was in existence and considered of force when this endorsement was made, it was not according to the fact.. The existence of the arrangement as early as 1816 explains some of the circumstances which were urged upon our consideration as evidence of an agreeement between the respondents at the time of sale. It may account for the company’s being charged with the expenses of the mortgage which Clark gave, and with the $4375 of repairs incurred about this time.


Similar interests in land are held in trust, as in the New-York <mask> and other old unincorporated associations ; and by the Shakers, [ *158 ] on trusts established before the statute Restraining trusts, and since by means of a private act, merely restoring the common law as respects them, by taking them out of the operation of the statute. Much such an interest in lands was also held by the Albany Exchange Company before its incorporation, in 1837, and the decision of our supreme court, in 19 Wendell, 424, admits its validity.


Whether the company has the power to compel the payments necessary to create the fund required, or must depend upon the voluntary action of its members for that purpose, does not change or affect the legal rights of the parties interested in it, if the money is in fact furnished and paid over. The ownership of it is then to be determined according to the established rules of law. Where a party effects an insurance upon his own life for the benefit of his *482wife or his child, and the amount is made payable to them in case of his death, and no power is reserved to the insured by any act of his own to change the policy or divert the disposition of the fund, he has no interest in it, and can do no act in relation to it which shall conflict with the interest of the beneficiary. The rights of such beneficiary under the policy become vested as soon as it is issued, and no persons except those to whom it is thus payable can assign, surrender or otherwise dispose of the policy, and the courts will protect such beneficiaries against all acts interfering with their riglits. (Ruppert v. Union Mutual Ins. Co., 7 Robt., 155; Fitch v. Am. Popular Ins. Co., 59 N. Y., 557; Thompson v. Am. <mask> Life and Savings Ins. Co., 46 id., 614; Fowler v. Butterly, 18 id., 68; Barry v. Brume, 11 id., 261.) It follows from these authorities that the insured in such a policy has no property or estate in the amount payable in case of his death; that it belongs to beneficiaries named in it and would not therefore pass under a will of all his estate, for he has none in it. If, however, by the terms of the policy any power of disposition over the money payable at his death is reserved to the insured such power is in the nature of an appointment, and must be executed as such. In the case under consideration the by-laws of the company stand in the place of a policy, as none was ever issued, and by them the power is reserved to the testator by his will to direct the disposition of the money to be paid at his death, and if he had executed this power in a proper manner he would have' effectually diverted the fund from the particular purpose to which it was appropriated by the arrangement under which it became payable. For reasons before stated it would not pass under the residuary clause as part of his estate, and any intention on the part of the testator to divert the fund from the very proper purpose for which it was primarily devoted should be expressed in clear and unmistakable terms. No such intention is expressed in the will which the testator has executed, and in the absence of such proper executioir of the power, the money was properly paid to Mrs. Greeno as widow of the testator, and 'as such she has the right to retain it. In an analogous case it was held in the Kentucky Court of Appeals that it was not in the power of the company, or of the member, or both, to alter the rights of those who by charter are declared to be beneficiaries, *483except in the mode and to the extent therein indicated. (Masonic Insurance Company v. Miller’s Admrs., 13 Bush, 489-494; Duval v. Goodson, in same court, reported in Alb. Law Jour. [Dec. 11, 1880], 479.)


Passing on to the question of priorities, as between De Nuccio and the mechanics’ lienors, <mask> and Moyer, section 13 of the Lien Law gives the lienors priority over De Nuccio’s unrecorded contract. (Reedy Elevator Co. v. Monok Co., 171 App. Div. 653, appeal dismissed 224 N. Y. 699; Schwartz v. Rappaport, 115 Misc. 227; Greenberg v. Marsh, 101 Misc. 18, affd. 184 App. Div. 890.)


“ But while there was a possibility that the money might so remain the bank had no right to require that it should be so left. Neither the charter nor the by-laws create anything in the nature of a <mask>, under which, on dissolution of the corporation, the then depositors would receive the money of those absent and unknown. On dissolution, the shares of a depositor who could not be found would be paid over to his legal representative, who might be an administrator in case his death was established, or a guardian, in case of mental incapacity, or a trustee in bankruptcy in case of insolvency, or a representative appointed under statutes applicable to abandoned property. But it is not necessary to wait for the dissolution of the bank. If the facts warrant it, a legal representative can be appointed at any time, with all the rights incident to such appointment, including that of withdrawing the funds- and holding them for the true owner when he shall establish his claim.”


Again, this transferability may be found in many sorts of trusts. A well-known instance of this may be seen in the <mask> of New-York, originally built for the purposes of a Merchants’ Exchange. It is a trust of real estate, with transferrable shares as personal property; it was originally settled by the most eminent counsel of this state, and its validity has been attested by nearly fifty years experience, during which, above two hundred shares have passed through courts, assignments, insolvencies, bankrupt commissions, distributions of estates, &c., without their legal transferability having ever been impeached. See printed articles of the Tontine, N. Y., 1798.


We cannot discover, what the counsel for the appellant claimed on the argument of this appeal, that the statements of the <mask> plan in the policy and in the pamphlet were indefinite or uncertain, for the statement is very plain and very easily understood, and no testimony of experts or witnesses Jof any kind is required for its elucidation or comprehension.


No proof was offered to show that Ferdon, the first assignee, had made or offered to make any payment of any of the nremiums, but the defendant offered to show by one of the children of the insured and assignor that in a conversation she had with him he surrendered to her, for her father, the policy in controversy, stating that it was not of any benefit to him as the premiums were not paid, and would not be if they were not paid. This evidence was objected to because she was one of the assignors, and rejected. Nevertheless it appears, as wo have seen, that the defendant had possession of the policy and paid the premiums for several years and up to its maturity on the <mask> plan.


Second. The old incumbrance On the <mask> Coffee House before the sale was, as Clark states, to be discharged by him. This he performed, as we have seen, by transferring the amount of it to the part which he purchased. The payment made by Lansing of his half of the incumbrance should have gone into the hands of Clark, and if paid to Stewart for the benefit of Clark, an endorsement should have been made on the bond. It is admitted that no endorsement either on this account or any other was ever made on it. If this fact sheds any light on the transaction of the sale, it is too uncertain to guide us safely to the result at which the appellant wishes to arrive.


In fact the line may be very faint, and depending wholly upon the purely legal and technical character conferred, whether a joint stock association or a trust, freed by law from certain positive restraints imposed by our modern statutes, be a corporation or not. The <mask> trust, before mentioned, is managed by directors annually elected by stockholders ; its real estate is held *153by trustees, continuing tbeir trust from hand to hand during the lives of the original nominees and the survivors .of them, with transferable shares, and wholly without personal liability. For the reasons already stated, the eminence of the counsel (the late R. Harrison) who prepared the trust, and the frequency with which its legal character must have passed in review before lawyers and courts, and always without objection, it may well be regarded as sanctioned judicially. It is a valid trust. Add to it a legislative charter, making the associates a body corporate and no more, what then is the effect ? Simply to give a different technical character, an artificial individuality, in Chief Justice Marshall’s phrase, a different mode of standing in courts.


This was objected to and excluded and then various other ques*314tions were propounded to the witness with a view of presenting .the same question in various aspects, and all the testimony was excluded. The witness then testified that the agent made statement and explanations of the <mask> plan in addition to those contained in the pamphlet, and was asked what those statements were. That testimony was also excluded. This question was also asked and rejected : Q. In accepting this policy did you rely upon the representations made to you touching the advantages of this plan over other plans and touching the manner in which the funds or profits accruing to the assured was to be kept and preserved ? The court decided that the counsel inquire as far as the pamphlet was concerned, and that the inquiry must be so limited. In the application one of the questions asked of the plaintiff was whether the tontine plan had been fully explained to her, and whether she authorized the company to retain the dividends on the policy thereby applied for and to place the same in a reserve fund, in which she was to participate in accordance with the provisions made by the company regarding policies in the class she had selected, and not otherwisé, and her answer was in the affirmative. It was the claim of the plaintiff’s counsel on the argument of this appeal that this action was for fraud, and that the exclusion of the representations made by the agent of the defendant when he solicited the application was erroneous, because the fraud was then and there perpetrated by him in that way. The answer to this seems to be that the power and authority of the agent to make representations was limited to statements made in writing and presented to the officers of the company in the application. And the plaintiff was made aware of this restriction because it is contained in the policy itself; more than that, the pamphlet containing a full and true description and representation of the tontine plan of insurance was read by the agent to the plaintiff, and there was no concealment or misrepresentation on that subject. If after that the agent made representations respecting the advantages of the plan over other systems and forms, they were quite immaterial and amounted simply to recommendation and opinion. They had no tendency to deceive or mislead the plaintiff or her husband so long as the plan itself was explained to, and understood by them.


When exploring transactions suspected to be fraudulent, it often becomes necessary to build our conclusions upon an accumulation of circumstances, and such conclusions are strong or weak according to the number and character of the circumstances by which they are sustained. Circumstances which are inconsistent with one state of facts do not, however, necessarily prove another state of facts with which they may be made to harmonize. Combine those with this case presents to us as we may, doubts and difficulties, I apprehend will arise, as to the simple question whether Stewart was a joint purchaser with Clark of the west half of the old <mask> Coffee House. Most of the pretences that have been set upin opposition to such a conclusion have been scattered, yet competent proof is still wanting to create in the mind a confident reliance on its truth.


On the 20th of September, 1819, Clark and Stewart came1 to a settlement, and on that occasion a 'release was executed by the latter to the former, which, in its language, has no particular reference to any interest "Stewart might have in the west half of the <mask> Coffee House, but by its general terms, would convey to Clark whatever right Stewart had therein. One object of the bill was to set this release aside as fraudulent. This would be done without any hesitation, if it stood in the way of any relief the appellant can claim. It was expressly and repeatedly admitted by the respondents counsel on the argument that this instrument had no relation whatever to the real property in question. It is not, therefore, considered as presenting an obstacle to any claim which the appellant may have to that property.


Four of the policies were of the so-called “ Semi-<mask> ” type, three of them on thé twenty-payment fife plan and one of them on the fifteen-payment fife plan. Upon completion of the tontine dividend period of the said three twenty-year payment policies on April 26, 1906, the insured withdrew in cash the shares of the accumulated surplus apportioned to the same amounting in each case to $2,687.20, and continued each policy in force on the ordinary plan for the sum of $10,000 in each case.


If I am not mistaken in the views I have taken of this case Clark and Stewart combined together to withdraw from the creditors of Stewart a large amount of his effects, and the whole scope of their answers has been to cover up or gloss over their fraudulent conduct. This charge, impeaching as it does the integrity of the respondents and imputing to them fraud extensive in amount and odious in character, should not be lightly made; the examination of the facts brings us, *643however unwilling we may be, to this conclusion. A detail of them will not be expected, for it would amount to little less than a repetition of the testimony. Clark’s own books shew that he misrepresented the affairs of the company at the time Tallmadge retired from it; the accounts on which the settlement was made in 1819, after Stewart had become insolvent, are grossly incorrect; and the pretences set forth by him as the true motives for abandoning the contract which he admits was made subsequent to the purchase by him, that Stewart should become a joint owner with him in the west half of the <mask>, and on which contract Stewart had paid, by giving up the bond, at the least eight thousand five hundred dollars, are effectually exploded. From answers thus impeached we were urged to withhold all credit; the counsel for the appellant asked us to throw them wholly out of view. He applied to them the maxim, falsus in uno, falsus in omnibus. That they have been in several important particulars seriously impeached, is certainly true; and considering them as evidence, I cannot bring my mind to yield them much consideration.


The plaintiff commenced this action in the year 1882, while her husband was yet alive, setting out in her complaint the substance of the policy, and a description of the <mask> principle, and alleging that at the time of the issuance of the policy the defendant represented to the husband of the plaintiff, who was her agent in that behalf, that the policy about to be issued had many and great advantages over the ordinary form of insurance, and among other things, stated the principle of the tontine plan substantially as it was; that the plaintiff relied solely and entirely on the representation so made and accepted the policy on such reliance; that such representations were false and fraudulent, and that the defendant did not perform the obligation assumed by the policy in many respects, which are specified, and that by reason of the violation of the contract by the defendant, the benefits of the same have been lost to the plaintiff to her damage of $2,500 which she seeks to recover in this action. The complaint was dismissed on the trial and the cause comes here on appeal from that judgment.


Commendation is not misrepresentation; even exaggeration *315differs widely from intentional falsehood; general assertions as to value or advantage cannot be made the basis of an action for deceit; an expression of opinion is not a representation of fact upon which a charge of fraud can be predicated. Even assuming that there was misrepresentation by the agent, the plaintiff was not misled, for the whole of the system was laid before her truly by the reading of the pamphlet. These reasons seem to be a sufficient justification of the ruling which rejected the representations of the defendant’s agent beyond the facts embodied in the pamphlet. If there be no proof of the perpetration of a fraud aside from the declaration of the defendant’s agent, not reduced to writing as contemplated by the policy of insurance, then there should be no recovery on that ground. All the representations made by the company were contained in the pamphlet, and that stated the plan of <mask> insurance as carried into practice by the defendant with accuracy; and the plaintiff was notified that the agent was not authorized to make any further or other statements except in a particular manner, which was not pursued.


In addition, as to Mr. Mueller’s objections, Metlife argued that a settlement cannot be assessed based upon the complaints’ alleged damages. Rather, it contended, the court must look at the strength of the plaintiffs’ case. Metlife further argued that plaintiffs, in fact, suffered no monetary damage and that Mr. Mueller’s objection to demutualization is a policy argument rejected by New York State. Finally, Metlife refuted Mr. Wald-man’s claims that Metlife had unfettered discretion in its selection of assets to be contributed to the settlement and the administration of the closed block. Metlife noted that the stipulation of settlement “requires the assets to be valued at their ‘current market value as calculated by Metlife,’ ” that the rules of the New York Insurance Department require that “assets added to the closed block be valued either by established public markets or through arms’ length third-party valuation,” and that the “Plan of Reorganization requires that the majority of the closed block assets be investment grade quality.” (Defend*605ant’s mem at 40.) It then argued that the distribution of the closed block assets is governed by the plan of reorganization and calculated annually with the goals of exhausting the assets with the last claim and avoiding buildup and the <mask> effect.5 (Id. at 40-41.)


The money so received by the defendant, with the exception probably of a balance of $1,868.61, not paid, specially claimed by the receiver, was mostly disbursed and paid out by him in acquiring the title to stock of the Widows and Orphans’ Company, which *524he afterwards transferred to the officers of the Mutual Protection Company for its use and benefit. Of these moneys $3,592.63-were retained by him as the price of thirty-five shares of the stock owned by himself in the "Widows and Orphans’Company;, but these shares, as well as those otherwise acquired by him,, were transferred in the manner already stated to the officers of the-Mutual Protection Company, and they were afterwards retained and apparently used for the benefit of the Mutual Protection. Company, and continued in that condition until the appointment, of the receiver. Neither before that time, nor at any time since then, were the shares offered, or proposed, to be returned to the defendant, or the persons from whom he had obtained them, in carrying out this arrangement. Previous to the time of the transfer of the shares, other shares in the Widows and Orphans’ Company had been sold in the city of New York at a premium above their .par value, but as a matter of fact that was more than they were-worth, for as the liabilities of the Widows and Orphans’ Company exceeded its assets, and to a very considerable degree would absorb-its capital, the actual value of the shares was much less than their par value. If the <mask> liabilities were not to be included in the-liabilities of the company, then the actual value of the stock was shown to be about sixty dollars a share. If such liabilities were to-be added, then the value of each share of $100 would be a fraction over fifty dollars; and at the time of these transactions it was known to the officers of the Mutual Protection Company, who were principally concerned in them, that the capital of the Widows and Orphans’" Company had been impaired to the extent of about $60,000, while the-defendant himself testified that it was known to him to be impaired to the extent of about double that amount. In that, however, the-evidence tended very decidedly to prove that he was mistaken,, and that the actual deficiency in the capital by reason of liabilities was the amount which has already been mentioned. It was stated in the course of the evidence that this increase in. the liabilities of the. company was occasioned by distributing or dividing its earnings among its policy-holders by crediting proportionate parts of it to-them in their accounts upon the books of the company, and that the deficiency could be corrected or removed by withdrawing these-credits. But as the credits had in fact been made and were at no-*525■time withdrawn, bnt were assumed to have been proper in the transactions of these parties, the power previously to expunge them in that manner would not change the liabilities of the company. If that had been done, then there would be reason for excluding these credits from consideration, but it was not and they were left to remain upon the books without any change being made as distributions of so much of the accumulations or earnings of the company, and in that manner contributed to produce this deduction in the capital which was shown to exist by the evidence. But it is not probably' very important to determine whether these credits formed irrevocable liabilities on the part of the company or not. If they did, and they had been canceled, then the stock of the company would-be of a correspondingly greater value than it was. But without that change its actual value was shown to have varied from fifty dollars to sixty dollars for each share of $100, and that-rendered the acquisition of the stock so far valuable to the Mutual Protection Company to whose officers it was transferred evidently for its uses, and as no offer was at any time made to return the stock, neither the company nor the receiver himself could rescind this purchase and recover from the defendant the purchase-price. For’ even though the transaction may have been an unauthorized and unlawful one, for the reason that it was not within the power of the Mutual Protection Company to acquire the stock in this manner, it could not be disaffirmed and the money recovered without either returning or offering to return this stock. (Woodruff v. Erie R. R. Co., 93 N. Y., 609.)


Under the guidance of these views as to the effect of the answers, I shall now consider the facts relied on by the-appellant to shew that Stewart had a trust estate in the west half of what was formerly the <mask> Coffee House in the city of Albany. Clark has a legal title to this property, and claims to be its owner. If a decree is made concerning it, his rights will be thereby affected. The statement of Stewart before Judge Miller, that it was agreed by Clark at the time of the purchase that he was to be jointly interested, cannot affect Clark. The answer of one defendant is not evidence against' another. (1 Caines’ Cas. in Err. 121. 5 Johns. R. 412.) Clark’s account of that transaction Is, that,he purchased the premises for himself only, and gave the bond of Si6,000 for the consideration money; that, shortly after he fitted up the building for stores, and about that timé Stewart verbally agreed to take one hálf, and to be at "one half of the expense of the repairs. It further appears,, from Clark’s examination and answer, that- in 1818 he causéd a deed to-be made out to Stewart of the undivided moiety of the premises purchased by him, but Stewart delayed completing the arrangement until his embarrassment, and then refused to-do it principally on the ground of his inability to pay for his part of the repairs. If there had been an agreement at the time of the purchase that Stewart should be interested there*645in to the amount of one half, or in aiiy other proportion, and he had paid a part of the consideration money equal to the proportion he was to have in it, or if a portion of the bond equal to the interest Stewart was to have- in the purchase was not to be paid by Clark, a trust would have resulted in favor of Stewart; but Clark, in his answer, denies such to have been the fact, and his statement before Judge Miller, on the occasion of Stewart’s application for a discharge as an insolvent debtor, is equivocal and inexplicit. His testimony on that occasion, as stated by one witness, is substantially that a short time after the purchase he made the repairs, and about that time Stewart agreed to take one half of the premises: as stated by another witness, it is, that he made the purchase in J uly, and afterwards altered the building and made the repairs, Stewart having agreed to take one half; that this agreement was made about the time of making the repairs. The repairs were made, as appears from other parts of the case, in 1816, nearly or quite a year after the purchase. The fair inference, therefore, to be deduced from the testimony of Clark before Judge Miller, and his answer, is, that the agreement with Stewart to be a joint owner was made subsequent to the purchase in 1815. Do the facts attending the sale and the subsequent conduct of the parties lead to a different conclusion ?


In the case at bar the junior mortgagee is not resisting the foreclosure of a <mask>, the terms of which have been so modified as to render the junior lien practically valueless. Here the junior lienor is seeking the affirmative right to foreclose on the ground that the security of the junior mortgage has been impaired. Although the evidence adduced at the trial herein indicates that there has been an impairment of a sort, yet the proof fails to establish extent of such impairment. Under the circumstances of this case and in the absence of an acceleration clause the impairment did not ripen into such a default in the terms of the mortgage as to entitle the plaintiff to declare due the unpaid balance of the principal debt before its maturity.


A judgment debtor dies. A contest over the priority of two judgment liens ensues. Both liens were established prior to the judgment debtor's death. After the judgment debtor died, plaintiff purchased one judgment lien at the execution sale of the junior lien. Plaintiff then brought this action to quiet title against defendant's <mask>. The trial court gave judgment to plaintiff. The court concluded that enforcement of defendant's senior lien was barred by Code of Civil Procedure section 366.2 for failure to enforce the lien within one year of the judgment debtor's death.1


The court in Cadlerock did not explain how the one form of action rule might be used to achieve the same result as the rule stated in Simon . It suggested that "[a]rguably, a creditor that owns both the senior and junior lien might be deemed to have rendered the junior lien valueless by its own actions when it conducts a nonjudicial foreclosure on the <mask>."


To fund the remediation, the receiver proposed borrowing funds from South County Bank (bank), one of very few institutional lenders willing to *655provide such funding. The bank would require, however, its loan to be secured by a receiver's certificate with first priority, i.e., a <mask> on the property ahead of all other recorded liens and encumbrances (super-priority lien). The receiver indicated no lender would loan money to the receiver unless it received a super-priority lien. The property as it then existed had no equity in light of the SunTrust lien. And even after remediation, the property value would be insufficient to satisfy the SunTrust lien, the substantial attorney's fees and cost award to the City (approximately $875,000), and the receiver's costs of administration. In other words, according to the receiver, a lender would not be repaid unless it had a super-priority lien on the property.


Although the lien of the judgment held by Jones extended to all the real estate of the judgment debtor, it was specific as to each portion, and, in that respect, analagous to .a lien created by mortgage. It was said in Spencer v. Harford ( 4 Wend., 381), that if a *146mortgagee of real estate foreclose without sale and enter into possession his debt is paid, if the property is of sufficient value at the time to satisfy it. (Per Savage, Ch. J., p. 385.) And it was held in that case, that the same result follows, if the mortgagee obtains a release of the equity of redemption, the property being then equal in value to the debt for which it was mortgaged. So, when the mortgagee enters, into possession of the mortgaged premises by virtue of a foreclosure, and his title thereto becomes absolute provided the mortgaged premises are equal to the value of the debt. (Morgan v. Plumb, 9 Wend., 287.) The same principle is applicable to mortgages of chattels, and it was held in Case v. Boughton (11 Wend., 106), that taking possession of the chattel after default, is a satisfaction of the debt, provided the chattel be of sufficient •value for the purpose. See, also, Charter v. Stevens (3 Den., 35); Olcott v. Tioga Railroad Company (27 N. Y., 545, per Selden, J. ip. 565). Why does not the same rule apply to a senior creditor whose lien is by judgment instead of mortgage, and who obtains .absolute title and possession through the process of redemption ? His-. hold of the property is- as complete as if he had derived it •through a sale upon -his judgment. Why should he not account for .its value to the extent of his debt % Of course, his accountability is not lessened by the fact that he sells the property to a third -person for less than its value. Having used his prior judgment to .redeem, and having taken a sheriff’s deed, under the junior sale, he is to be regarded as a purchaser, as already suggested, the consideration of his purchase being the amount of the bid and of his <mask>, provided the value of the property was equal to that amount. In that view of the case, Jones’ judgment was satisfied and «extinguished. ' ■ • • .


Unlike other courts that have vacated default judgments or orders pursuant to CPLR 5015 (a) (see Lane v Lane, 175 AD2d 103 [2d Dept 1991] [holding that it was in the interest of justice to vacate a default that was allegedly obtained through collusion]; Nachman v Nachman, 274 AD2d 313 [1st Dept 2000] *855[vacating a divorce judgment based on sufficient evidence of fraud and misrepresentation]), it is not an injustice for a mortgage to stay on a property against a subsequent purchaser who bought specifically “subject to” the <mask>.


Even if East Fork had a legitimate interest, relieving the property of plaintiff’s mortgage would not avoid injustice. Instead, it would create injustice as plaintiff would likely lose its entire investment if the court were to dismiss this case.1 Peters has already lost title to the property and East Fork’s motion would not remedy plaintiff’s improper service on Peters. The purpose of proper service is to give a defendant notice of a litigation so he or she can mount a defense. Because Peters has already lost the property, dismissing this matter would only help East Fork avoid a <mask> on a property it purchased with full knowledge of that lien. It would not allow Peters to defend against plaintiff’s claims or reach a settlement. Although Peters would receive a nominal benefit, the expungement of the note, that would appear to be of little practical value to someone serving a life sentence.


Westwood contends the trial court erred in granting summary adjudication on its causes of action for declaratory relief and enforcement of governing documents. It claims the court’s determination that the Supplemental Declaration was not entitled to priority over the deed of trust, on the ground it was an encumbrance recorded later in time, was in error because Comerica subordinated its priority to the later-recorded Supplemental Declaration by subordinating its deed of trust to the CC&Rs, which authorized Westwood to record the Supplemental Declaration at a later date. “A lien is a charge imposed in some mode other than by a transfer in trust upon specific property by which it is made security for the performance of an act.” (Civ. Code, § 2872.) When a property is encumbered with two liens, one lien is senior to, and has priority over, the other lien. When the <mask> is foreclosed, the sale of the security extinguishes all junior liens. (4 Miller & Starr, Cal. Real Estate (2021 supp.) § 10:1.) To determine which lien has priority, “California follows a first in time, first in right system or rule of lien priorities which is ‘modified by the recording statutes.’ (First Bank v. East West Bank (2011) 199 Cal.App.4th 1309, 1313; 4 Miller & Starr, Cal. Real Estate (2017 supp.) § 10:1, pp. 10-9 to 10-10 (4 Miller & Starr).) The rule is expressed in [Civil Code] section 2897, which provides: ‘Other things being equal, different liens upon the same property have priority according to the time of their creation . . . .’ (Italics


We agree with the trial court that paragraph 18 is central to Chase's complaint. Chase sought an order quieting title to reflect that it had the <mask>. Believing Walter would challenge the sufficiency of the legal description, it sought to correct it to reflect the true intent of the parties-i.e., that the property would secure the loan. Although it sought declaratory relief that the DOT in fact secured the loan as a first lien, even that cause of action highlighted the need to "correct the public records before third persons without knowledge of the errors and mistakes in the public records rely thereon to their detriment." The complaint's focus is correcting the mistake alleged in paragraph 18. Chase's contention that the gravamen of its complaint is for restoration of a lost deed under *690Civil Code section 3415, subdivision (a) is unpersuasive; the complaint neither references that statute nor any request to restore a lost deed. Accordingly, the demurrers were properly sustained on statute of limitations grounds.11 , The question becomes whether Chase could cure the defect by amendment.


We concur with Cadlerock that Roseleaf , supra , 59 Cal.2d 35, 27 Cal.Rptr. 873, 378 P.2d 97, cannot be read to support the rule created by Simon , supra , 4 Cal.App.4th 63, 5 Cal.Rptr.2d 428. Roseleaf 's holding that section 580d does not apply to nonselling junior lienholders cannot be contorted into a rule that section 580d somehow does apply to preclude a lienholder from seeking damages under the junior note if it, in its capacity as the senior lienholder, has exercised its right to conduct a private sale of the property rather than seeking a judicial foreclosure. As the court in Cadlerock notes, "[c]onspicuously absent" from Simon and cases following it "is a close examination of the text of section 580d." (Cadlerock , supra , 206 Cal.App.4th at p. 1548, 143 Cal.Rptr.3d 96.) Cadlerock examines the rationale Simon gives for its rule and concludes that it simply is not supported by the text of section 580d or by Roseleaf . Roseleaf , it notes, did not create an equitable exception to section 580d for sold-out junior lienholders. Rather, it is Simon that created an equitable exception to section 580d to expand the statute to preclude what it deems a deficiency judgment in favor of a junior lienholder which has exercised its power of sale under a <mask> on the same property. (Cadlerock , at p. 1549, 143 Cal.Rptr.3d 96.)


The court in Simon also justified its holding by the fact that the bank was not a bona fide sold-out junior because it was the bank itself, rather than a different lienholder, that made the decision to foreclose on the <mask>. The bank could have chosen judicial foreclosure to preserve its right to seek a deficiency judgment, and its options were therefore not limited by the whim of another creditor. (Simon , supra , 4 Cal.App.4th at p. 77, 5 Cal.Rptr.2d 428 [bank can be classified as a sold-out junior lienor only because it "literally 'sold-out' itself by foreclosing on its senior lien, and no third party's foreclosure or purchase affected the security of its junior lien"].) Section 580d simply does not, however, by its express terms, encompass a lien that has not been foreclosed. (Roseleaf , supra , 59 Cal.2d at p. 43, 27 Cal.Rptr. 873, 378 P.2d 97.) This suggested to the court in Cadlerock that Simon might have conflated section 580d with the "one form of action rule" set out in section 726.5 (Cadlerock , supra , 206 Cal.App.4th at p. 1549, 143 Cal.Rptr.3d 96.)


Applying these principles, the court finds that City West purchased the premises subject to the mortgage now owned by Fidelity and that Fidelity’s mortgage was not extinguished by the foreclosure sale. Therefore, Fidelity is not entitled to share in the surplus because the mortgage remains on the premises. Fidelity provided no case law to support its position that as holder of a <mask>, it is entitled to surplus money. The case law cited above suggests that surplus money is available to junior lienholders whose liens are extinguished by the foreclosure.


"The Supreme Court in Roseleaf found [that] the purpose of section 580d is 'to put judicial enforcement on a parity with private enforcement.... The *893junior's right to recover should not be controlled by the whim of the senior [as to whether to hold a private sale or seek judicial foreclosure]....' (Roseleaf Corp. v. Chierighino, supra , 59 Cal.2d at pp. 43-44, 27 Cal.Rptr. 873, 378 P.2d 97, italics [omitted].) [¶] Neither will a parity of creditor's remedies be served if [the bank] here is permitted to make successive loans secured by a senior and junior deed of trust on the same property; utilize its power of sale to foreclose the <mask>, thereby eliminating the Simons' right to redeem; and having so terminated that right of redemption, obtain a deficiency judgment against the Simons on the junior obligation whose security Bank, thus, made the choice to eliminate.


"By an inadvertent error and misinformation, despite title being vested in Borrower in his capacity as the trustee of Borrower's Trust, Borrower executed Plaintiff's Deed of Trust in his individual capacity, and the true intent of the parties failed, in that, at the time of executing Plaintiff's Deed of Trust, Borrower did not hold title to the Property in his individual capacity." (Hereafter paragraph 18.) The complaint asserted three causes of action. First, Chase sought an order quieting title to the property to ensure that it had the <mask>. It next sought reformation of the DOT in two respects. Believing Walter would challenge the level of detail in the DOT's property description, Chase sought to correct it to include "certain metes and bounds information" to match the full legal description of the property in the 1999 grant deed. Chase also sought to correct the DOT to reflect the "true intent of the parties" that the property would secure the loan. Finally, Chase sought declaratory relief as to the enforceability of the DOT, including a declaration that:


We agree that the policy here is not a "claims-made" policy, as it provides coverage for "loss or damage ... sustained or incurred by the Insured." The loss or damage claimed in the underlying action, however, is not a loss or damage covered by the policy. There is no obligation to pay benefits under a title policy unless there is a loss; a secured lender suffers an indemnifiable "loss" under a title policy only if the lender fails to recoup the debt because of an undisclosed <mask>. ( *435Karl v. Commonwealth Land Title Insurance Co. (1993) 20 Cal.App.4th 972, 978-979, 24 Cal.Rptr.2d 912 ; see Cale v. Transamerica Title Ins. (1990) 225 Cal.App.3d 422, 427, 275 Cal.Rptr. 107.)


encumbrances.” (Rourke, supra, 17 Cal.App.4th at p. 885; Little, supra, 234 Cal.App.3d at p. 360.) Allowing a judgment creditor to omit property tax liens from the application would cause trial courts, by virtue of a lack of information, to authorize sales of dwellings where there is insufficient equity to cover those liens— leading to one of two possible outcomes: (1) the sale would extinguish the real property lien without payment to the taxing authority (thereby leaving that <mask> unpaid), or (2) the sale would not extinguish the real property lien and the purchaser would be saddled with that lien (thereby leaving the purchaser with title that is not free and clear of all encumbrances). Either result is at odds with the legislative purpose of section 704.760. Plaintiff urges that the priority of tax liens would ensure that such liens would not go unpaid, but this would still saddle the purchaser with those liens; what is more, a rule allowing creditors to ignore tax liens in applying to enforce a judgment against a dwelling would permit a trial court to authorize a sale of a dwelling even when, had the liens been accounted for, there may be no leftover equity for the judgment creditor to acquire after the sale. Plaintiff responds with two further arguments—one legal, and one factual. In his legal argument, plaintiff asserts that the plain language of section 704.760, subdivision (c) requires a judgment creditor’s disclosure of only those liens and encumbrances that must be recorded. Pointing to the second and third clauses of that subdivision, which requires the judgment creditor to disclose “the name” and “the address of such person used by the country recorder for the return of the instrument creating such person’s lien or encumbrance after recording,” plaintiff urges that the


PACE granted LIPA permission to finance the LILCO acquisition (Public Authorities Law § 1020-f) through the issuance and sale of bonds. LIPA adopted bond resolutions dated May 13, 1998 and May 20, 1998 authorizing the issuance of $4.95 billion <mask> fixed rate and variable rate bonds. The State Comptroller thereafter approved the terms and conditions of LIPA’s bond proposals. On May 28, 1998, LIPA acquired LILCO by purchasing 99.9% of its stock.


Defendants, in their motion, also request that damages be awarded to them pursuant to UCC 9-625. Defendants point out *250that plaintiffs UCC-1 financing statement hinders 162 CHHC’s ability to obtain financing which would be secured by a mortgage because plaintiffs UCC-1 financing statement connotes a <mask>. Defendants also note that Nicodemo Esposito (who, as noted above, is the present owner of the garden unit) may encounter problems if he seeks additional financing due to the filing of plaintiffs financing statement.


As persuasive a case for fairness that could be made out for deducting the direct costs of buying the shares, as in United States v Elliott (supra), the case at bar is not a RICO forfeiture case, and most conclusively, the direct costs themselves (the <mask> loans) represent part of the proceeds of the bribe. Perhaps, if the stock had been acquired with their own, untainted funds, the defendants would merit a different result. Indeed, the point can be driven home that no deduction for the loans is appropriate at bar by observing that if defendants still held all the shares, their entire value, without diminution for the loans, would be forfeitable. (See, 2A Weinstein-KornMiller, op. cit, |f 1310.02, at 13-A-10, 13-A-16.)


Since the defendants have not parsed the alleged bribe in an attempt to eliminate as "proceeds” one or more of these alleged features of the "benefit,” the entire package must be construed as the "proceeds of a crime.” Manifestly, this package includes the <mask> loans themselves, the stock and the appreciation in value of this stock realized on its resale.


At 10:30 p.m. that evening, Bear Stearns’ board held a special meeting at which its senior management and legal and financial advisors discussed the liquidity problem, and the possibility that the company would not be able to meet its operational needs the next day, absent the identification of sufficient funding sources. The board was informed that customers were withdrawing billions of dollars, counterparties were refusing to roll over their repurchase agreement or do business with Bear Stearns, and the company was receiving and meeting margin calls. Following that meeting, representatives of JPMorgan and officials of the Treasury Department, the NY Fed and the Federal Reserve Board held discussions throughout the night. They ultimately agreed to a temporary NY Fed-backed loan facility (the loan facility). Pursuant to that arrangement, for a period of up to 28 days, JPMorgan would fund Bear Stearns on a fully-secured basis, supported by a back-to-back loan facility which permitted JPMorgan to borrow similar funds from the NY Fed through its discount window on a <mask> basis.


In his efforts to limit the scope of the attachment to $4 million, Mr. Clifford argues that the result is Draconian if the <mask> loan, interest and commission, and his capital gains taxes are not recognized. To evaluate this position, it is necessary to focus on just what the statute allows and analyze how the facts of this case fit within these provisions of the law.


The Cooperative Corporation also argues that injunctive relief to prevent violation of paragraph 39 is unavailable because there is no showing of irreparable harm. This mortgage is a <mask> mortgage and plaintiff’s only security is the property. The Cooperative Corporation contends that plaintiff in this case is not entitled to a money judgment at all. But the "property” which secures the mortgage includes the rent roll. If the receiver’s account is artificially reduced because the cooperative tenants seek to enrich themselves at the mortgagee’s expense, the mortgagee will not receive the full value of its security and will not be able to recover the shortfall from anyone. Thus, the cases relied on by the Cooperative Corporation which deny injunctive relief because the possibility of money damages preclude irreparable harm (Rosenthal v Rochester Button Co., 148 AD2d 375, 376-377; Haulage Enters. Corp. v Hempstead Resources Recovery Corp., 74 AD2d 863, 864; Kane v Walsh, 295 NY 198, 205-206) are inapposite.


Plaintiffs also dispute the existence of the Chanel debt and claim that it had no justifiable business purpose. They believe that defendants operated the partnership as a tax shelter for themselves, opting only for capital infusions that would produce net operating losses for Chanel, and <mask> debt for AFI and Chanel’s chief executive officer. Plaintiffs further allege that defendants negligently managed licenses of the partnership’s intellectual property, and that they deposited royalty checks from the licensees to the partnership into Chanel bank accounts.


The trustee proposes to create two trusts, one to hold the real property (a Manhattan apartment building) and the other to hold the other assets. The proposed severance will in no way alter the dispositive terms of the trust agreement and will not result in any increase in trustee’s commissions. The building has at all times been self-supporting. The trustee expressly represents that there are no current claims and none threatened or reasonably anticipated. The existing mortgage, representing 70% of the building’s current market value, is <mask> debt and specifically authorizes the transfer of the property to other family trusts without the mortgagee’s consent. The building is adequately insured both as to liability and casualty and the same or comparable insurance will continue to be maintained.


We have seen that forfeiture is authorized for crime proceeds or substituted proceeds. (CPLR 1311 [1].) These are defined terms.7 The crime of commercial bribe receiving in the first degree is a felony "defined in the penal law” (CPLR 1310 [5]) and qualifies as a predicate for forfeiture under the definition of “proceeds.” Included in the corpus of the bribe was the <mask> loan. It was through the use of that loan that Clifford acquired his shares. These shares became the substituted proceeds of this crime. The resale of most of these shares, by prearrangement with Abedi and the BCC Group at an inflated price, represents a gain or appreciation in value. This gain is not strictly realized by the sale or exchange of the loan for the stock nor an appreciation in the value of the *342stock. Therefore, in order to capture the full sale proceeds, including the nonrecourse loan amount, the prearrangement for resale at whatever price Clifford wanted must be considered as part of the bribe. The indictment certainly embraces both features of the bribe. It alleges that the benefit defendants agreed to accept was "the opportunity to purchase [the bank] stock at book value, certain non-recourse loans and the right to sell [this] stock.”


There would seem to be no reason why an omission in the appropriate circumstances could not be an overt act. Filing a form with crucial information omitted might be such an overt act. But in general simply not doing something would not seem to qualify as an overt act Certainly, since the purpose of requiring pleading and proof of overt acts is to show that a conspiracy has moved beyond the talk stage and is being carried out, alleging failure to act as an overt act seems to be a contradiction in terms. The overt acts alleged in the instant indictment consist of failing to inform an allied attorney over a period of five years of the means by which CCAH stock was purchased; failure by two of the defendants to inform their law partners over the same period of the means by which the stock was purchased; and, when informing an auditor of loans, failing to mention their <mask> nature. None of these omissions seem to this court to be overt acts.


It is undisputed that in 1983, Merrill Lynch, Pierce, Fenner & Smith, as part of the creation of three related real estate tax shelter transactions, established Lynx Properties Corp., which acquired title to 14 properties, located in 10 states, from Kmart Corporation for $35,300,000. Most of the purchase price was borrowed from Kmart, which issued 14 <mask> notes, each secured by a mortgage, one for each property. These mortgages constituted a first lien on the properties. The properties were then leased back to Kmart, which assigned the notes and mortgages to defendant Bank One’s predecessor in interest, the National Bank of Detroit, which acted as trustee for investors in trust certificates secured by the original notes and mortgages.


In any event, the crime on the basis of which this forfeiture action rests and on which plaintiff founds its calculation, commercial bribe receiving in the first degree, is supported by the <mask> nature of the loans, the BCCI source of these loans and the congruence of the structure of their stock acquisition with that of the many other fronts and nominees for BCCI and the BCC Group. Clifford’s explanation that his lawyers at Wachtel, Lipton, Rosen & Katz suggested a nonrecourse loan in view of his advanced age is not persuasive, particularly because such advice in no way explains why his younger protégé, Mr. Altman, also secured nonrecourse borrowing.


Later that Sunday morning, JPMorgan advised Lazard that due to the risks of a merger it could not proceed without some level of financial and other support from the NY Fed. JPMorgan continued to work with Bear Stearns toward a transaction, and also pursued discussions with the NY Fed. The NY Fed ultimately agreed to provide $30 billion of <mask> funding secured by a pool of Bear Stearns collateral consisting primarily of mortgage related securities and other mortgage related assets and hedges. According to officials of the Federal Reserve, the governmental intervention was premised on a concern that a sudden and disorderly failure of Bear Stearns would have “unpredictable but likely severe consequences for market functioning and the broader economy” (Markel aff, exhibit DD, at 3). It would also likely pose “the risk of systemic damage to the financial system” (id., exhibit K, at 5).


BCCI had gained its control of these corporations through nominees (BCC Group) who had side agreements with BCCI by which the voting shares of the nominees were controlled. BCCI had extended <mask> loans to these individuals to acquire their shares. In July 1986 Clifford obtained a $9.9 million and Altman a $4.9 million nonrecourse loan to purchase shares. Another nonrecourse loan in August 1987 of $2.3 million to Clifford and $1.1 million to Altman was made by the same lenders. The result was that the defendants acquired shares which were pledged as the only security for these loans. At the time defendants acquired these shares, an arrangement was made for resale subject to BCCI consultation whenever defendants would desire.


“We generally do not use the term loan ever . . . we call it an advance because in essence according to the language of the contract, what we’re doing is we’re purchasing a portion of your future receivables that don’t exist, which means we are becoming a partner in your business, and when our interest in your business is satisfied, which would be that payback amount, we exit, we’re no longer your partner, you go out on your own, you continue on, *475our interest that we’ve invested in has been satisfied to that amount and we move along ... if you look at the language we’re not allowed to write anywhere a loan. It’s illegal. So we don’t have it written anywhere loan, when we speak to a customer, I mean sometimes there’s a rep there that slips up and will say loan, but they are correct, these are not called loans” (tr at 23-24). However, upon further questioning by the court, it became clear that there was no evidence to support his purchase of receivables argument, or that the parties’ arrangement contemplated that plaintiff was an investor or partner in defendants’ business. While the witness spoke generally of instances, such as a flooded warehouse, under which plaintiff might not be able to collect repayment with interest from a customer, he was unable, when pressed by the court to point to a <mask> provision in the Merchant Agreement by which plaintiff assumed the risk that it might not be able to collect payments from the instant defendants’ account receivables. Merely telling the court that risk is contemplated under the terms of the agreement is inadequate, especially where, as here, the agreement provided for court review is illegible, with excessively small print. The court is further troubled by the witness’s testimony to the effect that plaintiff is able to escape an element of risk by deeming a borrower’s failure to pay to be wilful or otherwise unjustified, and entitling it to seek payment in full under the personal guaranty provided by RDN’s owner, Robby Neely. This required guaranty, along with the other facts and circumstances set forth clearly demonstrate that the principal sum advanced was absolutely repayable with calculated interest that exceeds the legal rate (72 NY Jur 2d, Interest and Usury § 85), and supports a finding that the evidence outweighs the presumption against a finding of usury (Freitas v Geddes Sav. & Loan Assn., 63 NY2d 254, 261 [1984]).


616, 629 (7th Cir. 2020), quoting Foman v. Davis, 371 U.S. 178, 182 (1962). When evaluating a decision not to permit an amended pleading, the analysis is not focused on only the district court’s actions. We also consider whether the denial of leave to amend caused prejudice to the appellant. Showing preju- dice ordinarily requires a party to show how she would have amended her pleading. And we expect that showing to be made at an early opportunity—in the district court, unless the court closed that door, and certainly no later than in an open- ing brief to this court. E.g., Webb v. Frawley, 906 F.3d 569, 582– 83 (7th Cir. 2018) (losing plaintiﬀ was “not entitled to leave to amend at this stage” after he failed to request leave to amend his complaint until it was too late). Failing to include an amended pleading, for example, “‘may indicate a lack of dili- gence and good faith.’” Arlin-Golf, 631 F.3d at 823, quoting Otto v. <mask> Life Insurance Co., 814 F.2d 1127, 1139 (7th Cir. 1986). Delay also makes it diﬃcult to “meaningfully assess whether [the plaintiﬀ’s] proposed amendment would have cured the deﬁciencies in the original pleading.” Crestview Village Apartments v. U.S. Dep’t of Housing & Urban Development, 383 F.3d 552, 558 (7th Cir. 2004); see also James Cape & Sons Co. v. PCC Construction Co., 453 F.3d 396, 401 (7th Cir. 2006) (“District judges are not mind readers…. Even as- suming that [plaintiﬀ] properly moved to amend, the district court did not abuse its discretion in dismissing with preju- dice, since it had no way of knowing what the proposed amendment entailed.”). Plaintiﬀs here never showed the district court how they thought they could amend their complaint to cure its deﬁcien- cies. Even in this court, plaintiﬀs also did not indicate in their 18 No. 18-3216


The plaintiff’s argument with regard to the $700,000 insurance policy on her husband’s life is, therefore, rejected and under the laws of both New Jersey and New York, Maccabees was justified on the basis of the material misrepresentations set forth in the application to rescind the policy and disclaim coverage (see, e.g., Daly v Paul Revere <mask> Ins. Co., supra, 489 A2d, at 1285; North Atl. Life Ins. Co. v Katz, supra, 163 AD2d, at 285).


These holdings are consistent with the purpose and intent of statutes like the two involved herein. "The requirement that a 'copy’ of the application be attached to the issued policy insures that the policyholder is provided with everything that the insurer relies on in issuing the policy, i.e., the entire agreement of the parties” (Ives v INA Life Ins. Co., supra, 101 *998Ore App, at 433, 790 P2d, at 1208 [emphasis supplied]; Evans v United Life & Acc. Ins. Co., 871d 466, 470). The insured is then presented with the opportunity and, in fact, a duty to read it or have it read, and if the application does not contain true answers to the questions asked, it is his further duty to have them correct it (Minsker v John Hancock Mut. Life Ins. Co., 254 NY 333, 338; Gozan v Mutual Life Ins. Co., 40 NY2d 707, 711; North Atl. Life Ins. Co. v Katz, 163 AD2d 283, 284-285; New York Life Ins. Co. v Rigas, supra, 168 A, at 24; Daly v Paul Revere <mask> Ins. Co., 199 NJ Super 584, 489 A2d 1279, 1284, affd 206 NJ Super 185, 502 A2d 48; Zachary Trading v Northwestern Mut. Life Ins. Co., 668 F Supp 343, 346 [SD NY]). This is to protect the insured from possible loss of insurance after many years of premium payments by affording him the opportunity at the inception of the coverage to make corrections of information which might nullify the supposed insurance protection (Cutler v Hartford Life Ins. Co., 22 NY2d 245, 250-251; Tannenbaum v Provident Mut. Life Ins. Co., 53 AD2d 86, 105, affd 41 NY2d 1087).