Hirsch v. Badler

Appellate Division of the Supreme Court of New York

Hirsch v. Badler

3 A.D.2d 921, 162 N.Y.S.2d 720, 1957 N.Y. App. Div. LEXIS 5513

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 13, 1957

StatusPublished

Cited by4 cases

This text of 3 A.D.2d 921 (Hirsch v. Badler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hirsch v. Badler, 3 A.D.2d 921, 162 N.Y.S.2d 720, 1957 N.Y. App. Div. LEXIS 5513 (N.Y. Ct. App. 1957).

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Opinion

In an action to foreclose a mortgage on real property, the appeal is from a judgment entered after trial before an Official Referee, dismissing the complaint. Judgment reversed on the law and the facts, without costs, and judgment of foreclosure and sale granted as demanded in the complaint. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein. While the declarations of an alleged agent are not competent to prove the agency as against the alleged principal, the principal may prove the agency by the testimony of his agent. (Steuerwald v. Jackson, 123 App. Div. 569.) Although the testimony of the plaintiff's husband was erroneously excluded, the record establishes that there was an affirmative act, in exercise of the option to declare the principal mortgage indebtedness due, when plaintiff’s attorney wrote a letter to that effect, notwithstanding that delivery of the letter was refused by the mortgagors. The option had been exercised prior to the time that the mortgagors offered to cure the default in payment of interest. (Cf. Albertina Realty Go. V. Rosbro Realty Corp., 258 N. T. 472; Gresco Realty Go. v. Clark, 128 App. Div. 144.) No valid tender was made. (Civ. Prac. Act, § 174-a.) Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.

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In an action to foreclose a mortgage on real property, the appeal is from a judgment entered after trial before an Official Referee, dismissing the complaint. Judgment reversed on the law and the facts, without costs, and judgment of foreclosure and sale granted as demanded in the complaint. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein. While the declarations of an alleged agent are not competent to prove the agency as against the alleged principal, the principal may prove the agency by the testimony of his agent. (Steuerwald v. Jackson, 123 App. Div. 569.) Although the testimony of the plaintiff's husband was erroneously excluded, the record establishes that there was an affirmative act, in exercise of the option to declare the principal mortgage indebtedness due, when plaintiff’s attorney wrote a letter to that effect, notwithstanding that delivery of the letter was refused by the mortgagors. The option had been exercised prior to the time that the mortgagors offered to cure the default in payment of interest. (Cf. Albertina Realty Go. V. Rosbro Realty Corp., 258 N. T. 472; Gresco Realty Go. v. Clark, 128 App. Div. 144.) No valid tender was made. (Civ. Prac. Act, § 174-a.) Nolan, P. J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.

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Bluebook (online)

3 A.D.2d 921, 162 N.Y.S.2d 720, 1957 N.Y. App. Div. LEXIS 5513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirsch-v-badler-nyappdiv-1957.

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