Golembowski v. Golembowski

263 A.D. 895, 32 N.Y.S.2d 523, 1942 N.Y. App. Div. LEXIS 7257

Opinion

In an action to foreclose a mortgage on real property, there are defenses alleging that the mortgage was executed without consideration, without the knowledge and consent of the mortgagee, that it was never delivered to the mortgagee, and that it was made solely for the purpose of defrauding a creditor of one of the mortgagors. Judgment in favor of plaintiff reversed on the law and the facts, with costs, and judgment directed as prayed for in the answers of the appealing defendants, with costs. The evidence clearly establishes that the mortgage was made for the purpose of defrauding a creditor, without consideration, and without the knowledge of the mortgagee, to whom it was never delivered. Findings of fact reversed and conclusions of law disapproved. Proposed findings of fact and conclusions of law of appellants are found and allowed, excepting findings Nos. 3, 4, 30 and 31, and conclusion No. 7, which are not found, and are refused. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.