64 N.Y.S. 191 | N.Y. App. Div. | 1900
The mortgage in suit was made by Theresa Cinque to secure the payment to Edward S. Flavell of the
The evidence given in behalf of the defendant on the trial was ample to sustain the finding of the learned judge at special term to the effect that the contract had been made between Edward S. Flavell, the mortgagee, and Giuseppe Cinque, the husband of the mortgagor, extending the time for the payment of the mortgage, so that no suit was maintainable thereon at the time of the commencement of this action. Flavell agreed with Cinque to build a house, and convey it to him when completed. According to Cinque’s testimony, Flavell agreed that, in case the house should not be completed or conveyed to Cinque, any money advanced by Cinque for the purpose of completing it should be applied in payment of the mortgage in suit. Cinque advanced $1,022 to Flavell under this agreement, but Flavell, instead of conveying the house to Cinque, conveyed it to somebody else. The legal effect of these transactions was to suspend for the time being all right to enforce payment of the installments and interest payable by the terms of the mortgage, and to entitle the mortgagor to have credited upon the mortgage the $1,022 paid by Giuseppe Cinque to Flavell. The learned trial judge held that this $1,022 sufficed to pay the mortgage in full, but I do not see how this result was arrived at. The amount secured by the mortgage was $1,200. The aggregate payments thereon were $145. The difference is $1,055, and it is impossible to see how this amount could be fully paid by $1,022. It seems to me, therefore, that the judgment must be modified so as to
Judgment modified in accordance with opinion of BARTLETT, J., and, as modified, affirmed, with costs. All concur.