Man v. Snow — 32 N.Y. St. Rep. 356

Majority

p. 356

Albon P. Man et al., Trustees, Resp’ts, v. Ambrose Snow et al., Ex’rs, Impl'd, App’lts.

(Supreme Court, General Term, Second Department

Filed May 12, 1890.)

Headnote

1. Mortgage — Evidence—Declarations of mortgagor.

Declarations of a mortgagor as to the amount remaining due on a first mortgage are not competent evidence against a second mortgagee.

8. Same — Cannot be revived by new loan and assignment.

Where the liability for which a mortgage was given has been paid, a loan by other parties to the mortgagor and an assignment to them by the mortgagee cannot revive the mortgage agai -st a subsequent mortgagee.

p. 357

Appeal by second mortgagees from judgment of foreclosure and sale.

On the trial plaintiffs proved the bond and mortgage and the check for $1,541 given for the assignment thereof and rested. Defendants gave evidence to show that said mortgage was given by defendant Elkins to W. T. Hatch as security against losses on certain stock transactions and proved their own bond and mortgage.

No evidence was given as to the amount due to Hatch on the ■ mortgage, except statements made by Elkins at the time of the assignment to plaintiffs, to the effect that he must provide $1,500 or $1,800 to take up the mortgage; that a larger amount was due to Hatch on it, but that he would provide the balance. It appeared that the check was made to Elkins’ order and delivered after it was endorsed to Hatch, who then executed the assignment.

Edward E. Sprague and Fred. Ingraham, for app’lts; Henry H Man, for resp’ts.

The production of the bond and mortgage made out a prima facie case of indebtedness thereon to the amount of $7,500 and interest, which by the concession of plaintiffs was reduced to $1,541.

The subsequent evidence showed that the mortgage was not given for a fixed sum, but to indemnify the mortgagees against an uncertain amount of losses.

The losses for which the bond and mortgage are an available security are not shown by any testimony that is competent against the second mortgagee. The language of Elkins at the time the $1,500 was advanced might be sufficient to show it a valid security as against him for that amount.

But the second mortgage was in existence, and no admission of Elkins could affect it.

It might be that no losses had occurred, or that they had been paid. If so, a loan to Elkins and an assignment by Hatch could not revive the mortgage against the second mortgagee.

The judgment must be reversed and a new trial granted, with costs to the appellants to abide the event

Barnard, P. J. and Dykman, J., concur.