
    Mapelsden v. Shea and Another.
    (City Court of New York—General Term,
    November, 1893.)
    Defendants, husband and wife, applied to a savings bank for a loan on bond and mortgage, which was to be a first lien on the property covered thereby. At that time the property was owned by the wife, and was incumbered for $1,100 in the shape of mortgage given to one B. by the husband during his ownership thereof. Plaintiff was the attorney for the bank, and at the time of closing the title for his loan advanced and paid to the mortgagee an additional ninety dollars for interest claimed to be due. In an action against husband and wife to recover such sum, the answer, after alleging title in the wife, is a general denial. At the close of plaintiff’s case a motion to dismiss the complaint against the husband was denied. Held, error; that in the absence of evidence showing that the husband authorized the payment in question, the motion to dismiss should have been granted.
    Appeal from a judgment in favor of plaintiff entered on the verdict of a jury. The opinion states the facts.
    
      Reuben Mapelsden, in person, for plaintiff (respondent).
    
      William King Hall, for defendants (appellants).
   Newburger, J.

In May, 1889, the defendants applied to the Harlem Savings Bank for a loan of $5,000 upon certain property at the time owned by the defendant Annie A. Shea, which was to be a first mortgage upon the premises; at the time there was a bond and mortgage held thereon by one Bertine, of $1,100, made by defendant Thomas J. Shea.

The plaintiff was the attorney and counsel for the bank.

At the time of closing the title, the attorneys for the mortgagee (Bertine) demanded an additional ninety dollars for interest claimed to be due. The plaintiff thereupon advanced and paid said amount to Bertine’s attorney.

He brings this action to recover such advances, claiming the same were paid for the use of the defendants.

The answer, after alleging that the property incumbered belongs to the defendant Annie A. Shea, is a general denial.

On the trial, after the plaintiff’s case had been closed, a motion was made by defendant to dismiss the complaint against the defendant Thomas J. Shea, which motion was denied', and exception taken.

The trial justice erred. There was no evidence offered that showed any liability on the part of this defendant.

The property belonged to the defendant Annie" Shea, and whatever benefits accrued from the advances made by plaintiff accrued to her and her property.

Thomas J. Shea had no interest in the property, as principal or otherwise, and the mere fact that he executed the bond which accompanied the Bertine mortgage created no liability on his part for any advances made by plaintiff. There is no evidence in the case which shows that he authorized or empowered the plaintiff to pay the additional interest. The motion to dismiss as to defendant Thomas J. Shea should have, therefore, been granted. As to the defendant Annie Shea, the evidence clearly shows that the moneys sought to be recovered in this action were advanced for the benefit of real estate belonging to her. The record shows no error in the trial of the case as against her.

The judgment as to the defendant Thomas J. Shea is reversed and a new trial ordered, with costs to abide the event; as to defendant Annie Shea judgment affirmed, with costs.

Van Wyck, J., concurs.

Judgment accordingly.  