Gillett v. Depuy , 63 N.Y.S. 49 ( 1900 )

Kellogg, J. :

Some evidence was given on the trial tending to establish two settlements between the deceased and the defendant Darius Depuy of all their accounts and fixing the sum unpaid on the two real estate mortgages, one settlement in 1891 and one in 1896. Presum'ably at these settlements, if they were had, the1 parties fixed' upon the prope.r application of the' sums of money prior to those dates paid, and determined what should be applied upon the chattel mortgages and what upon the real estate mortgages. But if the evidence of the settlements is to be deemed unsatisfactory and insufficient, then it became an open question and the defendant was at liberty to make proof of all actual payments made upon the mortgages sought 'to be foreclosed. The County Court appears to have decided that the evidence bearing upon settlement was insufficient, and I do not think, we are called upon to determine whether or not this was error or whether the weight of evidence does not support the contention of plaintiff upon that question, for the reason that the case must be tried over.

■. I do not think the decision can be maintained because of the obvious errors committed in crediting all the money shown to have been paid upon the two real estate mortgages and one chattel mortgage. The case does not disclose any reason whatever for ignoring the chattel mortgage of $500, given. May 1, 1877. This would seem to stand at least as well as the chattel mortgage footed at $210.77 on May 1, 1877, which the County Court allowed'as one of the claims upon which the money was paid.

• The defendant, for proof of payment, had resort to the books of account of the deceased, giving him credit from time to time on account for items of money, etc., received, and apparently this was his sole proof except as to one check. To say that these payments should be applied upon One chattel mortgage and not upon the other was an unwarranted discrimination. There. was nothing in the proof to support it. There is no evidence that the $500 chattel mortgage given May 1,-1877, was ever paid, otherwise ^than by these items credited to defendant on the books of the deceased. It is evident from that portion of the testimony given touching settlement which the defendant did not deny, that the whole indebtedness secured by both chattel and real estate mortgages was treated by all parties as a simple lump sum and such payments by way of money or otherwise as were made were to apply indiscriminately upon the whole of this' lump indebtedness. The proper basis for computa-tion, therefore, was not the amount of the two real estate mortgages and one chattel mortgage on May 1,1877, but the amount on that date of the four mortgages, the two real estate mortgages and the two chattel mortgages, or else so much of payments aj>pearing on the books of deceased as necessary should have been first applied to extinguish the $500 chattel mortgage.

I do not think importance should be given to the indorsement of $500 on the real estate mortgage as of May 1, 1877. This indorsement was made by the witness Smith in November, 1896, he says to keep the mortgage alive. No money was paid at the time of the indorsement. On May 1,1877, no portion of the principal was due, and only interest for five years. In the light of this testimony it is hardly to be presumed that the defendant paid in advance of the maturity of his obligations. If the chattel mortgage was given for property or other Joan of money, or if it was given as additional security or given as a cover for defendant’s benefit, and never had a valid inception, it should not have been indorsed on the real estate mortgage. In any event if it ever represented an actual sum owing by defendant to deceased, its payment is nowhere shown independent of the sums of money or items credited to defendant on the books of the deceased.

I think the interlocutory judgment should be reversed and a new trial granted, with costs to appellant to abide the event..

All concurred.

Judgment reversed upon the law and facts, and a new trial granted, with costs to the appellant to abide the evént.