104 N.Y. 414 | NY | 1887
There was a conflict of evidence as to the circumstances under which the bank took the plaintiff's mortgage. It was claimed, on the part of the plaintiff, that the bank held it as collateral security for certain obligations held by the bank against Dygert, and, therefore, that it had an interest in the security, when it was paid to the bank by the plaintiff. The bank, on the other hand, insisted that it held the mortgage, simply as the custodian of Dygert, for the simple purpose of receiving payments, which might be made thereon by the plaintiff. This issue was sharply contested, and was found by the jury, against the defendant. So, also, there was a conflict of evidence, as to the verbal agreement, alleged by the plaintiff, to have been made by the defendant, through its cashier, with him, to the effect that if the plaintiff *417 would pay the mortgage to the bank, the bank would release its mortgage on the plaintiff's lot, and would also procure for the plaintiff a release of the Rasbach and Myers mortgage. This issue, also, the jury found against the defendant, and in favor of the plaintiff.
The findings of the jury, upon these issues, are not unsupported by evidence, and this court cannot review their decision on the facts. Upon the findings of the jury, there was ample consideration, for the agreement of the bank, to procure a release of the Rasbach and Myers mortgage. It must be assumed that the plaintiff paid his mortgage to the bank before maturity, upon the faith of the promise of the bank. He thereby changed his position, and did what he was under no obligation to do. The agreement was not within the statute of frauds. The undertaking of the bank was original, and not collateral. (Prime v.Koehler,
The judgment should be affirmed.
All concur.
Judgment affirmed. *418
