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MARX REALTY AND IMPROVEMENT CO. v. BOULEVARD CENTER (12/30/59)

December 30, 1959

MARX REALTY AND IMPROVEMENT CO., INC.
v.
BOULEVARD CENTER, INC. (ET AL., APPELLANT).



Appeal, No. 256, Jan. T., 1959, from judgment of Court of Common Pleas No. 1 (tried in Court of Common Pleas No. 6) of Philadelphia County, Sept. T., 1955, No. 1540, in case of Marx Realty and Improvement Co., Inc. v. Boulevard Center, Inc. et al. Judgment reversed. Assumpsit on case stated. Adjudication filed finding for plaintiff and against garnishee in the amount of $23,716.18, and judgment entered, opinion by FLOOD, P.J. Garnishee appealed.

COUNSEL

Abrahma L. Freedman, with him Mitchell E. Panzer, Morris Wolf, and Wolf, Block, Schorr and Solis-Cohen, for appellant.

George B. Clothier, with him Walter J. Collins, Herbert A. Fogel, and Obermayer, Rebmann, Maxwell and Hippel, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 398 Pa. Page 2]

OPINION BY MR. JUSTICE BOK

The following case stated, abbreviated for convenience, was presented to the court below:

On November 28, 1952, Boulevard Center executed its note payable to First Pennsylvania in the sum of $2,500,000 for a loan. As collateral security it executed its bond and warrant and a mortgage on certain Philadelphia real estate which was to be developed. These documents were signed and delivered and the loan was made. The Center also assigned to First Pennsylvania existing and later leases.

The development was not a success, and on November 12, 1954, the Center having defaulted on the obligations mentioned above, First Pennsylvania entered the Center as mortgagee in possession, thereafter

[ 398 Pa. Page 3]

    receiving rents, making disbursements, and applying the balances against the debt.

On October 7, 1955, First Pennsylvania privately bought the bond, warrant, and mortgage according to the terms of the collateral note, and on October 13th entered judgment on the bond. Damages were assessed at $2,714,588.26, and a fieri facias issued. In the assessment of damages the Center was given credit for $26,974.24, the net balance of rents.

On October 21, 1955, plaintiff took judgment for want of an answer to its complaint claiming commissions for negotiating leases. Damages were assessed at $23,716.18. Attachment execution was issued on October ...


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