Bamberger v. Cantor

Headnote

Bamberger v. Cantor, 173 App. Div. 889 , affirmed.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial depart

ment, entered March 23, 1916, unanimously affirming a judgment of Special Term in an action to foreclose a mortgage. The defendants Cantor appealed from the whole of the judgment. The plaintiff and the other defendants appealed from so much thereof as reduced the claim of the plaintiff from $55,905.05 to $13,819.91, with interest from May 1, 1908. The mortgage was executed May 1, 1908, by the defendant Jacob A. Cantor and the defendant Lydia G. Cantor, his wife, to the plaintiff, as trustee for the defendants, composing the firm of Wolf Brothers & Co. The mortgage and the bond accompanying same were given by the defendant Jacob A. Cantor to secure his indebtedness to the defendants composing the firm of Wolf Brothers & Co. arising out of certain dealings in the stock market had by the said defendant Cantor with said firm of Wolf Brothers & Co., and also to secure any indebtedness that might thereafter arise. The defendants Cantor admit the execution of the bond and mortgage, but claim that prior to May 1, 1908, the defendants Wolf Brothers & Co. converted certain stocks belonging to the defendant Cantor, and by reason of such conversion he was not at the time of the execution of the mortgage indebted to the plaintiff or to Wolf Brothers & Co. in any sum whatever. These claims are set forth as a defense and counterclaim, and the cancellation of the bond and mortgage and other relief is prayed for. The plaintiff, in his reply, denied the alleged conversion and plead an account stated and the Statute of Limitations as affirmative defenses to the counterclaim.