Muir v. Greene

115 A.D. 173, 100 N.Y.S. 722, 1906 N.Y. App. Div. LEXIS 3650

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1906
• Status: Published

Opinion

Per Curiam:

Brockway’s agreement' to extend Greene’s time for the payment of his indebtedness, although not put in the form of an enforcible contract for a definite time, was in fact followed by long forebearance, and ■ consequently, being made at Mrs. Greene’s request, fiirnislied sufficient consideration for the mortgage, (Strong v. Sheffield, 144 N. Y. 392.) Broclcway’s refusal to make further advances when requested did not servé to invalidate the mortgage. At most it could only have furnished a cause of action against him.. We are unable to find any evidence, however, that Mrs. Greene ever consented that the fifty dollars subsequently loaned should be included in the amount to be secured by the mortgage. Concededly this loan was not made as part of the future advances for which the mortgage was, in part, made, and neither party understood or intended when this sum was loaned that it was to be covered by the mortgage. ' The agreement to that effect was made afterwards" by Greene and Brockway, and apparently "Mrs. Greene neither knew of this or assented to it.

The judgment must, therefore; be modified by deducting from the principal sum found due the sum of fifty dollars, with a corresponding reduction of interest and allowance and as so modified must be affirmed, without costs.

Present — O’Brien, P. J., Ingraham, . Clarke, .Houghton and Scott; JJ.

Judgmént modified as directed in opinion and as-modified affirmed, without costs. Settle order on notice.