Duryea v. Liftchild — 144 N.Y.S. 1113

Majority

p. 1113

DURYEA et al. v. LIFTCHILD et al.

(Supreme Court, Appellate Division, Second Department.

December 31, 1913.)

Headnote

Appeal from Special Term, Kings County. Action by Louis T. Duryea and others against Elizabeth Liftchild and others, in which the Marketable Title Company is assignee. From an order confirming a referee’s report on foreclosure of a mortgage, defendants Frank A. Liftchild and George Liftchild appeal. Modified and affirmed.

I. Newton Williams, of New York City, for appellants.

Robert S. Kristeller, of New York City, for respondents.

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. 2, 3, and 4, both inclusive, are sustained, and appellants’ proposed findings 2, 3, and 4 and conclusions of law 1 and 2 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.