
    (70 Hun, 575.)
    VAN SCHAICK v. VAN BUREN et al.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    •Contract—Uncertainty.
    An agreement by the payee of a note with the maker that at its maturity he will double the loan to the latter, and take a new note for double the amount of the first one, and-a mortgage on certain land to secure it, is void for uncertainty in the absence of any stipulations as to what the terms of such new note and mortgage shall be.
    Appeal from judgment on report of referee.
    Action by James A. Van Schaick against Edgar O. Van Burén, Paul O. Van Burén, and T. Franklin Silvey on a promissory note, in which defendants pleaded an agreement by plaintiff to take a note of defendant Edgar O. Van Burén, secured by mortgage, on the maturing of the note in suit. From a judgment entered on the report of a referee in favor of plaintiff, defendants appeal.
    Affirmed.
    The referee found the following facts:
    That on or about April 1, 1884, at Schuylerville, N. Y., the plaintiff loaned to the defendants the sum of $1,500, and they executed and delivered to him therefor their promissory note, a copy of which is set forth in the complaint herein. That at the same time it was agreed by paroi between the parties that, if certain funds expected by plaintiff from the west should come to him during the year, he would make therefrom a further loan of $1,500 to the defendant Edgar O. Van Burén, and take from him for both such loans a first mortgage for $3,000 on his farm in Sunderland, Vt., and surrender the note. That nothing was said between the parties as to the time or terms of the proposed mortgage. That the farm alleged in the answers to be of the value of $6,000 was represented to the plaintiff by the defendants Paul C. Van Burén and T. Franklin Silvey to be of the value of $4,000 to $6,000; and was in fact of the value of only $3,000. That the interest for one year was paid on said note before it matured; and thereafter, and about April 3, 1885, the defendants demanded of the plaintiff that he advance an additional sum of $1,500, and surrender the note and take a mortgage for $3,000 on said farm. That there were' these two mortgages on said farm, one held by Mr. Law for $1,500, and one held by the defendant Silvey as indemnity against said note, and the defendants did not execute or tender to plaintiff any $3,000 mortgage. That plaintiff declined to make the further advance, and stated as reason therefor, in substance, that he had been obliged to send money west, instead of receiving money from there. The plaintiff had previously and on January 16, 1885, notified defendant Silvey by letter that he should want the money on the note in the spring. That the plaintiff is the owner and holder of said note. That the same became due and payable before the commencement of this action, and the' defendants are indebted to the plaintiff thereon in. the sum of $1,500, with interest thereon from April 1, 1885.
    The material part of his opinion is as follows:
    Upon first reading the pleadings, a doubt arose in my mind as to the sufficiency of the answers to constitute a defense. However that may be, the proofs have not satisfied me that any valid, enforceable contract to make the further loan and take a mortgage was entered into, nor that the loan made and the one to be made were inseparable or dependent, nor that plaintiff has failed in the «performance of any valid agreement made by him; and I am at loss to know what kind of a mortgage the defendant Edgar should have tendered to entitle him to specific performance or to damages for nonperformance. So far as the agreement between the parties rested in paroi, it was void for incurable uncertainty. Pars. Cont. (6th Ed.) 561, 565; Abeel v. Radcliff, 13 Johns. 297; Baurman v. Binzen, (Sup.) 10 N. Y. Supp. 342. Nor was this part so much a part of the note as to vitiate it, or to constitute a complete defense to it except by way of counterclaim. Batterman v. Pierce, 3 Hill, 171; Abeel v. Radcliff, 13 Johns. 297; Swift v. Opdyke, 43 Barb. 274; Tipton v. Feitner, 20 N. Y. 423; Isaacs v. Plaster Works, 67 N. Y. 124.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    R. A. Parmenter, for appellants.
    L. Fraser, for respondent.
   HERRICK, J.

I am not entirely satisfied with the findings of the referee upon the facts in this case. It seems to me that the preponderance of evidence shows that the agreement upon the part of the plaintiff was to advance an additional $1,500 in the spring of the year following the giving of the note in question, and to then take a mortgage for the whole $3,000, and surrender up the note of $1,500. But, conceding the true state of facts to be as I have suggested, still the agreement is one that does not seem to be capable of being enforced by reason of its -uncertainty. The authorities on that point cited by the referee in his opinion, and also by the court in the case of Baurman v. Binzen, (Sup.) 16 N. Y. Supp. 342, seem to sustain the contention of the referee upon that point, (see, also, Milliman v. fluntington, 68 Hun, 258, 22 N. Y. Supp. 997;) and I therefore think that judgment should be affirmed. I see no occasion for writing an opinion.

Let judgment be affirmed with costs. All concur.  