Stadtmuller v. Schorr , 246 A.D. 746 ( 1935 )

In an action to foreclose a mortgage on real estate, defendant pleaded a merger of the bond and mortgage by its consolidation with two other mortgages, and that the mortgage in suit does not exist. Plaintiff endeavored, on the trial, to prove that the consolidation was obtained from plaintiff by fraud. Judgment of foreclosure and sale reversed on the law and the facts, with costs, and complaint dismissed, with costs. In our opinion, the findings of fraud with respect to the consolidated mortgage are not sustained by the evidence, and the bond and mortgage described in the complaint were merged in such consolidated mortgage. Inconsistent findings of fact and conclusions reversed and new findings and conclusions to be made in accordance herewith. Lazansky, P. J., Carswell, Tompkins and Johnston, JJ.', concur; Davis, J., dissents and votes to affirm. Settle order on notice. [See post, p. 746.]