Duryea v. Liftchild — 160 A.D. 891

Majority

p. 891

Second Department,

December, 1913.

Louis T. Duryea and Others, as Trustees under the Last Will and Testament of Edgar R. Duryea, Deceased, Plaintiffs, v. Elizabeth Liftchild and Another, Defendants, Impleaded with Marketable Title Company, Respondent. Frank A. Liftchild and George Liftchild, Appellants.

Headnote

Appeal by the defendants, Frank A. Liftchild and another, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 6th day of June, 1913, confirming a referee’s report.

George H. Liftchild was incompetent to testify that he received the mortgage from his mother, and the evidence shows that he did receive the mortgages from Williams, with directions to record them so that they would be equal liens, and his assignee is affected by such agreement. The appellants’ exceptions to findings of fact Nos. 8 to 16, and conclusions of law Nos. 3, 3 and 4, both inclusive, are sustained, and appellants’ proposed findings 3, 3 and 4 and conclusions of law 1 and 3 are found. The order should be modified so as to provide for the distribution of the surplus pro rata to the holders of the three mortgages, after crediting a payment of $700 on the mortgage of George Liftchild, and as so modified affirmed, without costs. Burr, Thomas, Rich, Stapleton and Putnam, JJ., concurred. Ord'er modified so as to provide for the distribution of the surplus pro rata to the holders of the three mortgages, after crediting a payment of $700 on the mortgage of George Liftchild, and as so modified affirmed, without costs.