Elmhorst v. Maziroff

Headnote

Elmhorst v. Maziroff, 176 App. Div. 145 , affirmed.

Appeal from a judgment, entered December 28, 1916, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant, appellant, entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiffs in an action to foreclose a purchase-money mortgage on real property made by defendant Maziroff on May 2, 1904, in favor of Mary Fint, to secure the payment of the sum of $8,900, with interest at five per cent, payable the second days of May and November in each year. By the terms of said mortgage $1,500 of the principal became due and payable May 2, 1907, and the balance on May 2, 1909. Mary Fint died on the 14th day of November, 1907. Her will was probated, and letters thereon issued to the plaintiffs, her daughters, on March 14, 1908. This action was not commenced until March 8, 1915. On the trial defendant Heffron claimed title to the bond and mortgage in suit, under an assignment of record, purporting on its face to have been made by Mary Fint to one William H. Remsen, and subsequent assignments. Two questions were litigated at the trial, namely: “ Was the assignment purporting on its face to have been made by Mary Fint to William H. Remsen a forgery? Are the plaintiffs estopped as against defendant Heffron from foreclosing said mortgage, by silence, delay and negligence? ”