Nielsen v. Festina Realty Co. , 1 N.Y.S.2d 164 ( 1937 )

Defendant has appealed from a judgment of foreclosure and sale. On this appeal he concedes that the judgment is correct. He now seeks, however, to eliminate from the decision certain findings of fact and conclusions of law. In his amended answer he alleged that the bond and accompanying mortgage were made without consideration; that such instruments were made without authority of the corporate defendant; that the bond and mortgage were given by the corporate defendant as collateral security for the personal obligation of appellant and as security for the performance of the conditions of certain agreements made between him and respondent, his former wife; that the consideration for that agreement has failed; that respondent and the trustee had full knowledge of these matters. Appellant also interposed a counterclaim in which he demanded the cancellation and surrender of the bond and mortgage. Respondent was compelled to reply to the counterclaim. She denied the allegations contained in the separate defenses and alleged, inter alia, that appellant was the owner of all the capital stock of the corporate defendant and that it was a personal holding company for him and that the bond and mortgage in question were made by the corporate defendant, acting through appellant as its treasurer, and delivered to respondent in substitution for and in lieu of a cash payment of $20,000, which appellant had previously agreed to pay to the trustee for the benefit of respondent. These issues and many others raised by appellant were litigated at the trial and the trial judge was required to pass thereon. The trial judge correctly inserted the findings on these issues in his decision. By his pleading appellant made this procedure necessary. Judgment unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ.