Geminder v. Childs

146 Misc. 565, 263 N.Y.S. 551, 1932 N.Y. Misc. LEXIS 1304

Opinion

Cunningham, J.

Van Dyck, as agent for the plaintiff, had the right to collect the interest upon the mortgage as it became due. He did not have actual authority to collect the principal. Such authority will not be presumed because of his right to collect the interest. Although Van Dyck had the mortgage at the time defendants made the payment of principal to him, still such fact was not known to defendants and, therefore, forms no basis for a finding that he had apparent authority to collect the principal. (Crane v. Gruenewald, 120 N. Y. 274; Wangner v. Grimm, 169 id. 421, 429; Goetzman v. Danitz, 116 Misc. 140.)

Furthermore, on August 4, 1930, the date of the payment of the principal by defendants to Van Dyck, the latter did not have possession of the mortgage with the consent of the plaintiff, as the plaintiff by letter under date of May 5, 1930, demanded that he turn the mortgage over to her.

Judgment in favor of the plaintiff, with costs.