National Bank of Far Rockaway v. Fried

Per Curiam.

Cross-appeals by plaintiff and defendants. The defendant Joseph Fried appeals from so much of an order granting summary judgment against him as struck out the second affirmative defense set up in his amended answer, and from the judgment entered pursuant to said order. He also raises the question that certain amounts advanced for taxes were erroneously included in the judgment. If, as contended by this defendant, the allegations of his second defense would permit parol evidence to be admitted, then it offends against the principles laid down in Mount Vernon Trust Co. v. Bergoff (272 N. Y. 192). The order and judgment entered thereon should be modified by deducting from the amount of plaintiff’s recovery the sum of $369.74, with interest thereon from June 28, 1939, to the entry of the judgment, and the further sum of $56.35, with interest thereon from July 17, 1939, to the date of the entry of the judgment, and, as so modified, the order and judgment should be affirmed.

The two items deducted are for taxes advanced by the plaintiff on real estate held by it as collateral. The complaint contained no allegations entitling the plaintiff to recover such items in this action.

The defendant Flora S. Fried appeals from so much of the order as struck out her fifth separate defense. This defense is identical with the second separate defense of the appellant Joseph Fried and as to this defendant the order should be affirmed.

The plaintiff appeals from so much of the order as denies its motion for summary judgment against the defendant Flora S. Fried, and specifically from that portion of the order which denies its motion to strike out the third and fourth separate defenses contained in the amended answer of such defendant.

The third separate defense is based upon allegations to the effect that defendant Flora S. Fried signed her name on the back of the note because of representations by the plaintiff that if she did so, it Would advance a loan to her husband, the defendant Joseph Fried. It is conceded that the note in suit was given in settlement of an action then pending, brought by this plaintiff against the defendants. In view of this concession, the third separate defense is palpably a sham and without merit and should be struck out.

The fourth separate defense is based upon the theory of a discharge by reason of various extensions of time granted to the maker Joseph Fried without the consent of defendant Flora S. Fried. Under the circumstances of this case, we hold that defendant Flora S. Fried waived the extensions and this defense should be struck out.

Upon the plaintiff’s cross-appeal the order should be modified by striking out defendant Flora S. Fried’s third and fourth separate defenses and, as so modified, the order, in so far as appealed from," should be affirmed.

No costs to any of the parties.

Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.

On appeal by defendant Joseph Fried, the order and judgment entered thereon are modified by deducting from the amount of plaintiff’s recovery the sum of $369.74, with interest thereon from June 28, 1939, to the date of entry of the judgment, and the further sum of $56.35, with interest thereon from July 17, 1939, to the date of entry of the judgment. As so modified, the order and judgment are unanimously affirmed, without costs.

On appeal by defendant Flora S.' Fried, the order, in so far as appealed from, is unanimously affirmed, without costs.

On appeal by plaintiff, the order is modified by inserting a provision striking the third and fourth separate defenses from the amended answer of defendant Flora S. Fried and, as thus modified, the order, in so far as appealed from, is unanimously affirmed, without costs.

Settle order on notice.