109 N.Y.S. 877 | N.Y. App. Term. | 1908
The complaint alleges that one Finek was employed by defendant to obtain two $2,000 six per cent, two-year second mortgage loans on defendant’s premises, Nos. 426 and 428 East One Hundred and Twenty-first street; that defendant promised to pay said Einck, in case he should obtain an acceptance of said mortgage loans, $600 and disbursements; that Finck did obtain an acceptance of said mortgage loans on said premises from one McConihe, who was and ever since has been ready and willing to make said loans; that said Finck disbursed $10; that defendant refused to take the money so obtained by said Finck, and that Finck assigned the claim in suit to plaintiff. The answer is a general denial. The jury found for defendant. Plaintiff appeals. Defendant signed a card in Finck’s office, which he claims he signed at Finck’s request, without knowing what it contained. The card reads as follows:
“ ¡Read this before signing.
“ John Finck,
“ Mortgages and Real Estate,
“ 39 West 42nd Street,
“ Telephones 997, 998 Bryant.
New York, 7/15, ’07.
“ John Finck, Esq.,
“ 39 West 42nd Street, City.
“ Dear Sir : I hereby authorize yon to accept on my behalf a second mortgage of $2,000 each at 6/ for two years, covering my property 426—428 E. 121st St., subject to a first mortgage of $6,000 ea. at 4f° due Emigrant Bank.
“ I further agree to pay fifteen per cent, of the loan, disbursements and recording tax (which shall include, when
“ This authorization is to remain in force sixty days from this date o.r at any time thereafter until this contract is revoked by me in writing.
“ Truly yours,
“ J"OSEPH DlLHON. [l. S.]
“Address, 850 6th Ave., cor. 48th St.
“ I have read this Contract before signing.”
Defendant subsequently, after refusing the offer of Mr. McOonihe to make the loan at six per cent., obtained a loan from another party at four and one-half per cent. There is no dispute that Finck procured McOonihe and that the latter was able and willing to make the loans in accordance with the terms of the above quoted paper. Defendant offers evidence tending to show fraud on the part of Finck in obtaining defendant’s signature to this paper. This testimony ■was inadmissible under the answer. 48 Misc. Rep. 504; 102 App. Div. 546; 127 N. Y. 370; 46 Misc. Rep. 107. Plaintiff sufficiently raised objection to this line of evidence at the trial, and it was not necessary to keep continually repeating his objection to each question. 181 N. Y. 33. There are other objectionable features in the case, which it is unnecessary to discuss, as the reason above stated is sufficient of itself to require a reversal.
Present, Gtldebsleeve, Seabuby and Dayton, JJ.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.