247 A.D. 898 | N.Y. App. Div. | 1936
Appeal from an order granting plaintiff’s motion made pursuant to rule 113 of the rules of Civil Practice, striking out the answer as insufficient and directing entry of judgment for plaintiff. Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The appellant took subject to the mortgage in question and consideration for the agreement to reduce interest is imported from its promise to pay such interest and to make installment payments to cover arrears, which it was not theretofore obligated to do. (Krebs v. Carpenter, 124 App. Div. 755; City Bank Farmers Trust Co. v. Slowmach Realty Corp., 238 id. 524.) The sufficiency of the writing is a question of fact, and, moreover, the Statute of Frauds must be pleaded to be invoked. The agreement is also independent of the original bond and mortgage and between different parties. The authority of the alleged agent to make the agreement is also a question of fact. Lazansky, P. J., Hagarty, Carswell, Davis and Taylor, JJ., concur.