146 N.Y.S. 915 | N.Y. App. Div. | 1914
The defendant Jennie V. .Kennedy appeals from a judgment of foreclosure and sale entered in favor of the plaintiff, and which likewise canceled and set aside certain instruments of alleged assignment affecting the mortgage involved therein. This action grew out of the behavior of one George F. Stain-ton, whose acts have been the subject of so much recent litigation in this court, and who, at the time of the trial of this case, was confined in Raymond street jail awaiting trial on a charge of forgery. This action was brought to foreclose a mortgage made and executed by the Jacob Kaiser Improvement Company to Jacob Kaiser on the 15th day of January, 1910, given to secure payment of the sum of $3,000 and interest. The plaintiff claims title to the mortgage under an assignment made and executed on the 17 th day of January, 1910, by the said Jacob Kaiser in favor of herself, which assignment was recorded in the office of the register of the county of Kings on January 17, .1910. The defendant, appellant, Kennedy appeared and affirmatively set up in her answer that she was the lawful owner and holder of the mortgage in question by virtue of the following assignments: One duly executed and acknowledged on the 20th day of January, 1910, by the plaintiff in favor of George F. Stainton and recorded in the office of the register of the county of Kings on June 24, 1910; one dated the 27th day of June, 1910, from George F. Stainton to one Herman Rosenthal, recorded in the office of the register of the county of Kings on the 9th day of July, 1910, and one dated the 7th day of July, 1910, from the said Herman Rosenthal to íhé defendant, appellant, recorded in the office of the register of the county of Kings on the 20th day of September, 1910.
Alfred J. Baker, an attorney at law, called on behalf of the defendant, testified that he had searched the records in the register’s office of Kings county on behalf of the defendant when the mortgage had been offered for sale by Rosenthal to her husband, and that he saw the assignment from Annie E. Stainton to George F. Stainton on file in the register’s office, but it had not yet been recorded. He requested the register’s office to send the assignment to him. He likewise made an effort to get it from Mr. Stainton. Stainton promised to send it to him.
John Kennedy, called on behalf of the defendant, testified that he was her husband, and that he knew one Herman Rosenthal, who came into his office in June, 1910, and wanted to know if he would buy a mortgage. Rosenthal came back the next day and brought assignments of the mortgage to him, that is, an assignment from George F. Stainton to Rosenthal. He, Kennedy, asked Mr. Baker, to look them over, and he asked Mr. Rosenthal what he wanted for the mortgage or the assignment. “He said, ‘I will take $2,150.’ I said, ‘No, sir, I think the mortgage runs too long, and I will give you $2,500.’ ” They agreed on $2,500. Baker told Kennedy that the assignment from Annie E. Stainton to George F. Stainton was on file in the register’s office. He gave Rosenthal a check, but it was subject to an investigation. This check was admitted in evidence. The transaction was closed on July seventh. The Title Guarantee and Trust Company paid the interest to him. The $2,500 paid to Rosenthal was paid for the bond and mortgage in question, and for nothing else. He asked Rosenthal if he was the owner of the mortgage, and he said yes, and he asked him how he got it, and he said he bought it from a man by the name of Stainton. He gave it to Mr. Baker to investigate and make a search. He did his own appraising. He 0 sent a man to Brooklyn to investigate the
Charles R. Gaiser, called on behalf of the defendant, testified that he was formerly the owner of the premises affected by the mortgage in question, and that Annie E. Stainton never demanded any interest from him. Kennedy had demanded the payment of interest from him.
James E. Kelly, called on behalf of the defendant, testified that he was acquainted with George F. Stainton and had represented him in some litigation concerning his father’s estate. The assignment in question was never recorded at his request, and he had no knowledge of such an assignment. The materiality of this testimony was an alleged indorsement on the disputed instrument that it was to be returned to Mr. Kelly.
Estelle Gertrude Stainton, called on behalf of the defendant, testified that she was the wife of George E. Stainton, and that she was a commissioner of deeds during the summer of 1909 and all of 1910. (Her name is attached to the acknowledgment as commissioner of deeds to the assignment in controversy.) She would attend at her husband’s office three times a week and assist him as a commissioner of deeds. The office of the Kaiser Realty Company was in the same office as George F. Stainton, and she admitted her signature as commissioner of deeds was attached to the bond of the Kaiser Improvement Company to Jacob Kaiser. She did not remember the transaction because she signed so many papers. She did not remember anything about it. She had a great many of these transactions, and she became a commissioner for the accommodation of the Kaiser Realty Company and her husband’s family. She had taken acknowledgments of Annie E. Stainton as well as other members of the family, and the company. She was a commissioner of deeds on the 20th day of January, 1910, but could not remember if she was in her husband’s office on that day and did not remember whether she took any acknowledgments during the month of January, 1910, of Annie E. Stain-
The plaintiff, called, in rebuttal, testified that she never executed the assignment in question or made any transfer of the mortgage to her nephew, and never authorized anybody else to do so. The judgment roll in the action of Annie E. Stain-ton v. Henry Kahrs to foreclose a mortgage for $3,500, was received in evidence, and the referee’s report of sale in that action, showing that the amount due to the plaintiff for principal and interest, amounting to the sum of $3,710.31, was paid to George F. Stainton, the plaintiff’s attorney. The balance of this amount, after investing the $3,000 in the assignment of the bond and mortgage in question, was paid to the plaintiff in check and cash. Her nephew collected the interest at all times for her on the mortgage which had been foreclosed, and sent it to her. She had the bond and mortgage which was foreclosed in her possession.
The court at Special Term wrote a brief memorandum which sets forth the court’s impression as to the facts.
The appellant complains on this appeal that the court at Special Term erred in not accepting the certificate of acknowledgment annexed to the assignment in question as sufficient to justify a finding by it that the defendant was the lawful owner and holder of the bond and mortgage in question and that the probative force of such certificate of acknowledgment was not overcome by the uncorroborated testimony of the plaintiff. In support of this contention she cites the case of Albany County Sav. Bank v. McCarty (149 N. Y. 71) and the authorities therein cited.
We had a quite similar question here a few years ago in Nahe v. Bauer, No. 1 (141 App. Div. 115), in which the weight to be given to a certificate of acknowledgment was considered (opinion by Thomas, J.). There, as here, the question of a
I recommend that the judgment he affirmed, with costs.
Jenks, P. J., Rich, Stapleton and Putnam, JJ., concurred..
Interlocutory judgment affirmed, with costs.