In re People

263 A.D. 971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1942
• Status: Published

Opinion

Appeal from order denying application of trustees under a certificated mortgage for permission to execute an agreement of extension of the mortgage for a period of five years. Order modified on the law and the facts by striking from the first ordering paragraph the word “ denied” and substituting in place thereof the word “ granted.” As thus modified, the order is affirmed, without costs. Upon the facts contained in this record, the denial of the application was an improvident exercise of discretion. Whether or not the application should have been granted can be determined only upon facts presented to the court in written form. The Special Term’s discretion may not be moved by facts or opinions which are not made part of the record. If reliance is to be placed upon such matter it should be reduced to writing and filed so that it can be made the subject of scrutiny, with resultant rejection or approval. The evidentiary facts herein, in so far as they are not the subject of dispute, required a holding under the peculiar circumstances obtaining herein that the trustees’ application for permission to make the extension agreement should be approved. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur.