Woodruff v. Ackert — 61 N.Y. St. Rep. 827

Majority

p. 827

Isaac O. Woodruff et al., as Executors, etc., Resp’ts, v. Alfred T. Ackert, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 27, 1894.)

Headnote

Mortgage—Foreclosure—Setoff.

In an action of foreclosure, set-off in favor of the mortgagor against the deceased mortgagee is not established where, according to the latter’s testimony, such claim existed at the time the mortgage was executed.

Appeal from a judgment in favor of plaintiffs.

George Esselstyn (H. M. Taylor, of counsel), for app’lt; Alfred L. Manierre ( William Fullerton, of counsel), for resp’ts.

—This is an action to foreclose a mortgage, and the defense was a counterclaim for professional services by the defendant, who is a lawyer, for the testator of the plaintiffs. The defense was disallowed by the trial judge, and the defendant has appealed from the judgment entered against him. The amount of the claim now made by the defendant is much more than sufficient to extinguish the mortgage, which was made to secure the payment of $1,500. Moreover, according to the present position of the defendant, the testator of the plaintiffs owed him $1,500, and more, of which he could have demanded payment at the time when he borrowed the money; but that, instead of doing so, he applied for a loan for that amount, and executed a mortgage upon his property to secure its payment. Such a transaction is so inconsistent with the methods of men of affairs, accustomed to the transaction of business, that it surpasses belief. It is inconceivable that this defendant, who was a lawyer, would apply to the plaintiffs’ testator for the favor of a loan of $1,500, when he could have demanded it as a payment, as a matter of right. The first charge of the defendant is under date of March, 1869, and the testator of the plaintiffs died in December, 1892, more than thirteen years after the first date; so that the defendant allowed the statute of limitations to run twice over against some portion of his claim, without any effort to collect the same. All the facts and circumstances of the case tend to confirm the conclusion of the trial judge that the services of the defendant .were rendered without the expectation of pecuniary reward.

The judgment must be affirmed, with costs.

All concur.