Cone v. Niman , 229 A.D. 801 ( 1930 )

Order reversed upon the law, with ten dollars costs and disbursements, and motion for summary judgment granted, with ten dollars costs. The agreement alleged to have been made, by which the defendant should be released from his obligation under the mortgages and notes upon delivery of a deed of the property in question, was entirely without consideration and there can be no estoppel because, before the foreclosure suit was instituted, the plaintiff repudiated and refused to recognize any such agreement and so advised the defendant. He, therefore, did not rely upon such alleged agreement and refrain from protecting his interest in the foreclosure suit. The defendant presented no proof that, by the purchase by plaintiff of the property at the foreclosure sale, the mortgage debt was extinguished by merger. Young, Rich, Kapper, Hagarty and Scudder, JJ., concur.