Pratt v. Poole — 39 N.Y. St. Rep. 924

Majority

p. 924

Mary Pratt, Resp’t, v. Sidney G. Poole et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed September 14, 1891.)

Headnote

Mortgage—Paymekt.

Defendant Poole gave to a firm, plaintiff's assignor, a bond and mortgage for §5,000, to secure an indebtedness for lumber. Pending a foreclosure of said mortgage another mortgage was assigned to said firm by defendant’s attorney, and an arrangement made for the cancellation of the one given by defendant. The terms of this arrangement were controverted on the trial, defendant claiming that the original mortgage was to be canceled upon the assignment of the other mortgage and payment of costs, and plaintiff that it was to be canceled on the payment of §1,000 and costs. The testimony on this subject was conflicting, but letters written by defendant some time after the arrangement was made were introduced ‘in evidence, in which lie asked for a satisfaction of the mortgage

p. 925

and promised to pay the $1,000. Held, that a finding that the assigned mortgage was an additional security, and not a substituted one, was supported by the evidence.

Appeal from judgment entered upon the report of a referee.

Action to foreclose a mortgage.

George W. Carr, for app’lt, Poole; Alfred R. Page, for app’lt, Ada F. M. Gollner; Edward S. Peck, for resp’t.

—On the 31st of March, 1883, Mary L Poole, with her husband, Sidney G. Poole, executed a bond and mortgage to Elliott, Porter & Bipley, as partners, doing business under the name of the Brentwood Lumber Company. The amount of the bond was $5,000. The bond and mortgage were given for an existing indebtedness of Sidney G. Poole to the lumber company. This indebtedness was adjusted at $6,600 in April, 1885. In February, 1888, $2,000 was paid on the mortgage. In September, 1885, $175 was paid thereon. In May, 1887, one Win-ship, at the request of Sidney G. Poole, assigned a mortgage made by Dewey & Bender, for $5,000, on lands in Queens county, H. Y., to Elliott, Porter & Bipley. The principal issue in the case is whether the Bender mortgage was substituted for the Porter mortgage, and thereby paid the Poole mortgage. The Poole mortgage was being foreclosed by the lumber company in August, 1886, and this action never proceeded to judgment, but was arrested when the Bender mortgage was assigned. There was an agreement to cancel the Poole mortgage and the specific difference is whether the cancellation was to be given for the Bender mortgage or upon the payment of $1,000 and some additional costs of the foreclosure suit.

Sidney G. Poole testifies that the agreement was to satisfy of record the Poole mortgage upon the assignment of the Bender mortgage, and upon payment of the costs. He further states that he paid these costs, $167. Mr. A. S. Tenney, who was the lawyer of the Brentwood Company, and their attorney in the foreclosure action, testifies that the agreement made upon the assignment of the Bender mortgage was that the Staten Island B. & M. (Poole) was to be canceled for $1,000 cash payment, besides the costs. That the $1,000 was never paid, and that he subsequently offered to "cancel the Poole mortgage for $750 instead of the $1,000. The written correspondence supports Mr. Tenney.- Poole promised to pay the $1,000 additional long after he says the agreement was made to cancel the Poole mortgage without such payment. The testimony of Mr. Stickler is not so positive and precise as to be entitled to much weight as against the written admission of Poole who made the agreement that the $1,000 was due to the lumber company for the satisfaction piece. The referee’s finding therefore, that the Bender bond and mortgage was an additional security, and not a substituted one, is fully supported by the evidence. The evidence shows that as between the parties to it the Poole mortgage rested on an adequate consideration. That at the time of its assignment to the plaintiff there was due upon the Poole" debt to the lumber company over $5,000. There is no

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agreement restricting the transfer of the mortgage by the lumber company. As between plaintiff and the lumber company, all the right of the company was transferred to plaintiff. She got not only a naked title to the bond and mortgage, but also a title to the consideration for which it was given. It was not given in pledge, but was transferred absolutely. The mortgagors were bound to pay to the holder of the legal title. Nelson v. Eaton, 26 N. Y, 410 .

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.