Griffing v. Vanderbilt

Headnote

Griffing v. Vanderbilt, 164 App. Div. 953 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 7, 1914, affirming a judgment in favor of plaintiff entered upon a decision of the Suffolk County Court on trial at Special Term in an action to foreclose a mortgage. The answer set up three counterclaims for which setoffs against the amount secured by said mortgage were claimed by the defendants, in substance as follows. 1. That the mortgage in question included payment of a certain judgment in favor of plaintiff against appellant rendered September 24, 1908, for $2,792.96; that this judgment included the amount due from appellant to Owen & Sturges for legal services rendered in conjunction with plaintiff in certain unsuccessful proceedings to declare appellant incompetent; that Owen & Sturges

were not paid by plaintiff, but sued appellant for their claim, and he was obliged to settle said action and pay them $1,950. Setoff of $1,950 with interest at the rate paid on said mortgage was claimed. 2. That after the giving of said mortgage plaintiff refused to satisfy the judgment, by reason of which appellant was for a time unable to place a loan on certain property in Brooklyn, to replace a prior mortgage thereon which in consequence was foreclosed, but before a sale, appellant, by motion, succeeded in having the judgment satisfied, but was obliged to pay costs of foreclosure and extra interest on the new loan amounting in all to $435.74, for which offset is claimed. 3. That plaintiff agreed with appellant to charge $1,400 for services subsequent to the judgment, but presented a bill for $2,375; meantime issued execution on the judgment and threatened to sell property of appellant levied upon thereunder unless the bill of $2,375 was paid, and, therefore, under duress of goods appellant gave the mortgage for an amount including $2,250 of the bill of $2,375 and thereby overpaying plaintiff $850, for which latter amount offset was claimed.