Majority
Judgment affirmed, with costs.—
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 81,500. Moreover, according to the present position of the defendant, the testator of the plaintiffs owed him 81,500 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 deferidant is under date of March, 1869, and the testator of the plaintiffs died in December, 1892, more than twenty-three years after the first date. So that the defendant allowed the Statute of Limitation to run twice over against some Í)ortion of his claim without any effort to colect 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 should be affirmed, with costs.
Brown, P. J., and Cullen, J., concurred.