
    Mary R. Potter, as Administratrix with the Will Annexed of John J. Morley, Deceased, Appellant, v. Albert E. Sager et al., Respondents.
    
      Potter v. Sager, 184 App. Div. 327, affirmed.
    (Argued January 15, 1920;
    decided January 30, 1920.)
    Appeal from a judgment entered December 14, 1918, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a decision of-the court on trial at Special Term and directing judgment in accordance with findings of fact and conclusions of law as modified by said Appellate Division. The action was to foreclose a mortgage on real property. The answer alleged partial payment and a tender of the balance due. It appeared that plaintiff, who was a non-resident of the city where the property was situated, employed an agent who for some years collected the interest on the mortgage and accounted therefor to plaintiff. Defendants alleged and proved that they had paid to said agent a part of the principal and an amount due for interest which he had failed to pay over to plaintiff. These payments were made by checks payable to the agent’s own order and were cashed by the bank upon which they were drawn. The Special Term held that said checks did not constitute payments upon the mortgage. The Appellate Division held that the giving of the checks payable to the agent constituted payment from the time that they were cashed in due course.
    
      Eugene Van Voorhis for appellant.
    
      Hiram R. Wood and Richard L. Saunders for respondents.
   Judgment affirmed, with costs, on opinion of Hubbs, J., below.

Concur: His cock, Ch. J., Collin, Hogan, Pound, McLaughlin, Andrews and Elkus, JJ.  