
    James O'Neill, Resp't, v. John Nolan, App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    Mortgage—Incapacity.
    Proof that the mortgagor was adjudged a lunatic and a habitual drunkard seven months after executing the mortgage; that he was in the habit of becoming intoxicated, and at such times misbehaved himself, is not sufficient to show that he was mentally incompetent to execute the mortgage, where his signature appears clear and firm, and the notary testifies that he was sober at the time, and understood what he was doing.
    Appeal from judgment in favor of plaintiff, entered upon report of a referee.
    Action to foreclose a mortgage. The defendant appeared by the committee of his person and estate, who answered, denying that anything was due on the mortgage, and also that at the time of the alleged execution of the mortgage the defendant was of unsound mind.
    The evidence tended to show that seven months after the execution of the mortgage the defendant was adjudged a lunatic and habitual drunkard; that he had a habit of becoming intoxicated, and at such times misbehaved himself. His signature was clear; the letters well formed, and show no signs of tremor, trembling or shaking. The notary who took the acknowledgment testified that defendant was sober, and understood what he was doing.
    
      Wm. II Benedict, for app’lt;
    
      John T. Barnard, for resp’t.
   Dykman, J.

This action is for the foreclosure of a mortgage upon real property, and is defended upon the ground of the mental incapacity of the mortgagor at the time of the execution of the bond and mortgage.

The cause was tried before a referee to hear and determine the same, and he has decided against the defendant.

The testimony established no defense to the action, and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  