Levy v. Louvre Realty Co.

that his loan should be repaid. He was put off from time to time by Hayman, who professed to be communicating with the persons for whom he was acting, whose names, however, he did not disclose to plaintiff. Finally, on a day in March, Hayman paid plaintiff all that was due upon his loan except $2,000, and for that sum gave him a check dated April 3, 1911. Plaintiff left with Hayman the bond and mortgage, the assignment to himself, and an assignment in blank as to the name of the assignee, signed by himself, under the agreement with Playman that, if the check for $2,000 was not paid on April 3d, he (plaintiff) should receive back the papers. On April 2d Hayman received fatal injuries, from which he died a few days later, and plaintiff was unable to collect the check for $2,000.

Kellner and Hayman had been interested together in a number of other transactions besides the loan to the Louvre Realty Company, and on March 20th had a sort of an accounting together, as a consequence of which Kellner gave Playman a check for something upwards of $6,000, and Hayman gave Kellner a number of promissory notes, aggregating $11,000. The basis upon which this settlement was arrived at was that the Louvre Realty Company mortgage should be assigned to and belong wholly to Kellner. There is a dispute, upon which much evidence was taken, as to when plaintiff left the bond and mortgage and assignments with Hayman. Kellner says that they were in Hayman’s possession on March 20th, when the settlement was effected, and that Hayman then gave them to him, although he did not record the assignment until April 3d, after he had learned of Hay-man’s injuries. Plaintiff says that he left the papers with Playman on March 28th, the day on which he received Hayman’s checks. If this be true, the papers were not in Hayman’s possession when the settlement of March 20th was effected, and Kellner could not have received them at that time. Although the court at Special Term has found in Kellner’s favor upon this issue of fact, we are of the opinion that the evidence, and especially the documentary evidence, strongly preponderates in favor of the accuracy of plaintiff’s version of the transaction.

We do not consider, however, that the question of dates is of prime importance. • Kellner and Hayman were joint adventurers or copartners, so far as concerns the loan to the Louvre Realty Company, and when they came to make their settlement they both knew that plaintiff had made a loan upon the security of the mortgage and had held an assignment of it. By no settlement that they made between themselves could they affect plaintiff’s rights or cut off any of his equities. If Kellner was misled by Hayman, as perhaps he was, into believing that plaintiff’s loan had been paid, the consequences of his reliance upon Hayman’s word must fall upon Kellner, his partner, and not upon plaintiff. The very papers themselves which Kellner says that Hay-man gave him showed upon their face that plaintiff had once held an assignment of the mortgage. Kellner was therefore put on notice, and bound to satisfy himself at his peril, that plaintiff’s interest had been satisfied. If Kellner had been a stranger to the transaction, he might insist that plaintiff was estopped to make a claim against him by rea

son of having given Hayman an assignment in blank. But he was not a stranger. On the contrary, so far as the mortgage was concerned, he was a partner, and chargeable with whatever knowledge his co-partner, Hayman, had as to plaintiff’s rights.

The judgment appealed from should be reversed, with costs, and judgment entered for the plaintiff; the decision and judgment to be settled on notice. All concur.