
    John Kam, Appellant, v. Henrietta Benjamin, Respondent, Impleaded with Others.
    
    
      Agreement to postpone the lien of a mortgage — consideration therefor—practice as to an appeal after the entry of judgment by a plaintiff defeated on the issue as to the priority of his lien.
    
    An instrument reciting that application for a loan upon real property had been made by the owner thereof to one Kam and that one Phelps held a mortgage upon the property, and providing that, “ in consideration of one dollar paid ” by Kam to Phelps, and that said “Kam makes said loan,” that the mortgage to Kam “should he a lien upon said premises prior to that of the mortgage given to said Phelps,’’ is supported by a sufficient consideration, although it be shown that, as a matter of fact, the one dollar was not paid, the loan having been made in reliance upon the agreement.
    
      Quaere, whether, had it appeared that Kam had paid over the amount of the loan to the mortgagor before the agreement was executed, it would establish a failure of consideration therefor. In an action brought for the foreclosure of a mortgage, after the Special Term had decided on the trial of that issue that a mortgage held by an answering defendant was a prior lien to that of the plaintiff’s mortgage, the attorney for the plaintiff moved for and obtained an order of reference to compute the amount due on his mortgage, and thereafter the usual judgment in foreclosure was granted, which recited that it was made on the motion of the plaintiff’s attorney, “no one appearing to oppose.” Subsequently the plaintiff’s attorney filed exceptions to the decision and appealed from that part of the judgment which was unfavorable to him.
    
      Held, that he had a right to appeal in this manner, although the judgment was stated to have been entered, in effect, by consent;
    That the plaintiff did the only thing he could do, taking such a judgment as the court awarded him, and that, in doing so, he could not be said to have entered the judgment by consent, nor to have acquiesced in the decision of the court.
    Appeal by the plaintiff, John Kam, from that part of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 10th day of July, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term, which provides “that the mortgage given by The Fred. Ilower Brewing Company, Limited, to one Richard Gr. Phelps on the 22d day of March, 1892, for the sum of $15,000, upon which there was due and unpaid on the 5tli day of May, 1896, the sum of $11,628, is a prior lien to that of the mortgage owned by the plaintiff and described in the complaint herein, and that the premises ordered to be sold herein to pay the plaintiff’s mortgage be sold subject to that of the said Phelps’ mortgage, which is now owned by the defendant Henrietta Benjamin,” and from that part of the judgment which forever bars and forecloses the rights of all ■ defendants,'except the rights of the said Henrietta Benjamin.
    
      Richard T. Greene, for the appellant.
    
      Almet F. Jenks and Rufus O. Catlin, for the respondent.
   Brown, P. J.:

This action was brought to foreclose a mortgage made by The Fred. Hower Brewing Company, Limited, to the plaintiff upon real estate in the city of Brooklyn. The complaint alleged that Henrietta Benjamin, the respondent on this appeal, claimed a lien upon the mortgaged premises, which accrued subsequent to the plaintiff’s mortgage. The respondent answered, alleging that she was the ■owner and holder of a mortgage upon the said premises, which was a first lien thereon. The issue thus raised by the pleadings was decided in the respondent’s favor upon the trial thereof at the Special Term, by Mr. Justice Wilmot M. Smith, and judgment was entered in accordance with that decision, directing a sale of the mortgaged premises subject to the respondent’s mortgage. From .so much of the judgment as adjudged the respondent’s mortgage to be a first lien upon the mortgaged premises and directed a sale thereof subject to such mortgage, plaintiff has appealed to this court.

The plaintiff’s mortgage is subsequent in date to the mortgage held by the respondent, but it is prior upon the record. The relative dates of the two mortgages are January 3, 1893, and March 22, 1892. Both were recorded on January 6, 1893, that of the plaintiff at one-fifty p. m., and that held by the respondent at three-twenty p. m. The Special Term gave priority to the respondent’s mortgage, on the ground that the plaintiff had notice of the existence thereof when he took his mortgage, and this conclusion is supported by the testimony given upon the trial. It appeared, however, that the respondent’s mortgage was originally made to one Bichard G. Phelps, who, on January 10, 1893, assigned the same and the accompanying bond to John P. McGraw, who on May 17, 1894, assigned said securities to Emily J. McGraw, and she subsequently •assigned them to the respondent. On January 14, 1894, said Phelps and McGraw executed, duly acknowledged and delivered to the plaintiff an instrument, of which the following is a copy:

Whereas, The Fred. Hower Brewing Company, Limited, of Brooklyn, N. Y., has applied to John Earn, of Buffalo, N. Y., for a loan of seventy thousand dollars, and
“Whereas, The said John Earn has consented to make a loan of said amount to the said Fred. Hower Brewing Company, Limited, upon condition that the said company secure said sum of money by executing and delivering its bond for said amount, and securing the same by giving a mortgage upon its real estate, and
Whereas, it appears from the records of the Begister’s Office, of the county of Eings, that Bichard G. Phelps has a mortgage for $15,000.00, given to him by the said Brewing Company upon its real estate, which mortgage bears date March 22nd, 1892, and recorded in the Register’s Office of Kings County, in Liber 2454 of Mortgages, at page-, January 6tli, 1893, and assigned to John P. McGraw, and
Now, therefore, in consideration of one dollar paid by the said John Kam to the said Richard G. Phelps and John P. McGraw, and in consideration that the said John Kam makes said loan to said Pred. Hower Brewing Company, Limited, the said Richard G. Phelps hereby agrees and covenants with the said John Kam, that the mortgage given to him as aforesaid, and which bears date March 22nd, 1892, and recorded in the Register’s Office of Kings County, should be considered and treated inferior and subsequent to the mortgage which the said The Pred. ITower Brewing Company, Limited, has given or may give to the said John Kam upon the premises described in said Phelps’ mortgage as security for the said loan of seventy thousand dollars. It being the intention of this agreement that the mortgage given to Kam for his said loan of seventy thousand dollars should be a lien upon said premises prior to that of the mortgage given to said Phelps, as aforesaid.
“ In witness whereof, the said Richard G. Phelps and John P. McGraw have set their hands and seals, this 14th day of January, 1893.
“RICHARD G. PHELPS, [l. s.]
“JOHN P. McGRAW.” [l. s.]
“ The words, ‘ and John P. McGraw,’ on the 18 line of the first page were inserted before execution.
“ EDWIN S. KEELER.”

This instrument was duly recorded on January 17, 1893.

The learned judge who heard the case at the Special Term decided that this instrument was made without consideration, and consequently did not estop the respondent from claiming priority of lien for her mortgage.

We are-of the opinion that this ruling cannot be sustained. This instrument ex}3ressed a consideration of one dollar, and it was shown that that sum was not paid. It is quite apparent, however, that if the plaintiff made his loan to the brewing company in reliance upon the agreement of the holder of the Phelps mortgage that the lien of that security would be postponed to the lien of the plaintiff’s mortgage, that such agreement would have the support of a sufficient consideration independent of the sum of one dollar caressed therein. While it does not appear from the oral testimony at what date the plaintiff paid the amount of his loan to the brewing company, it does appear from the recitals in the agreement itself that the loan had not been made at the time that instrument was executed. The recitals are that the brewing company had applied to the plaintiff for a loan and that he had consented to make it, and the stipulation is that, in consideration that said plaintiff would make such loan to the brewing company, the Phelps mortgage should be treated as having been given subsequent to the mortgage which the said brewing company had given, or might give, to the plaintiff. The oral testimony of Mr. Brendel, the plaintiff’s attorney, was that he met Mr. Phelps in the register’s office on January 6, 1893, when he went there to record the plaintiff’s mortgage, and that when he ascertained from the record the existence of the Phelps mortgage, he told Mr. Phelps and Mr. Hower, the president of the brewing company, that he would not consent that the plaintiff should advance one dollar of the loan, unless he had an agreement signed by Phelps postponing his mortgage to that of the plaintiff. After that conversation he prepared the agreement in question, and when he presented it to Mr. Phelps for execution he was told that the bond and mortgage had been assigned to Mr. McG-raw, and thereafter, and on January fourteenth, it was executed under seal and acknowledged by both Phelps and McG-raw. The seal imported a consideration, and the burden was imposed upon the respondent to overcome the presumption arising tliereform. And, in view of the recitals which I have referred to, we think the lack of a consideration was not shown by merely proving that the sum of one dollar, expressed therein, had not been paid. It was incumbent upon the respondent to show that the plaintiff had paid the amount to the brewing company before the agreement was executed if such was the fact. If that fact had appeared the ruling of the learned trial court could be sustained, but in the absence of such proof we think the respondent did not successfully bear the burden of proof which rested upon her.

It is contended by the respondent that the appellant has not properly brought the case into this court and that his appeal must be dismissed. It appears from the record before ns that after the issue raised by the respondent’s answer had been decided at the Special Term and the decision filed, the plaintiff’s attorney moved at Special Term, before Mr. Justice Gaynor, for an order of reference to compute the amount due on the plaintiff’s mortgage. This motion was made upon an affidavit which stated all the facts essential to authorize the court to make such an order, and in addition that the issue raised by the respondent’s answer had been duly tried and determined hi the respondent’s favor. Thereupon an order of reference was made to compute the amount due upon the plaintiff’s mortgage, and upon the coming in of the referee’s report the plaintiff’s attorney moved, before Mr. Justice Osborne, at Special Term, for judgment. Thereupon the usual judgment of foreclosure and sale was granted which recited that it was made on motion of the plaintiff’s attorney, “ no one appearing to oppose.” After the entry of that judgment exceptions to Mr. Justice Smith’s decision were filed by the plaintiff’s attorney and an appeal was taken from a part of the judgment as hereinbefore stated.

It is the respondent’s contention that the judgment, having been entered on the plaintiff’s motion, without opposition from the other parties, is to be treated as having been entered by consent and that the plaintiff cannot appeal therefrom.

There is no question as to the general rule that the court will not entertain an appeal from an order or a judgment entered by consent, but that rule has no application to such a case as this. The plaintiff was entitled to a judgment of foreclosure and sale. The only question at issue in the action was whether the mortgaged property should be sold subject to the respondent’s mortgage, or whether she should, as the result of the sale, be barred and foreclosed of all right and interest in the land. In entering the judgment as he did, the plaintiff’s attorney followed the direction of Justice Smith’s decision. The respondent was not interested in entering any judgment whatever, and the plaintiff did the only thing he could do in taking such judgment as the court awarded him. In so doing he cannot be said to have entered the judgment by consent or to have acquiesced in the decision of the court. It is no answer to this to say that the plaintiff might have moved for a new trial before the trial judge or have entered an interlocutory judgment upon Justice Smith’s decision and moved for a new trial in this court.- He might have pursued either of those remedies, but he could, we think, also enter a final judgment, expressing the determination of the court and appeal, as he did, from the part thereof by which he felt aggrieved. We are not referred to any provision of the Code of Civil Procedure which forbids such an appeal.

The judgment must he modified by striking out the words “ except the defendant Henrietta Benjamin ” from that part thereof adjudging the effect of the sale of the property, upon the defendants, and in other respects, so far as appealed from, must be reversed, with costs of- appeal.

All concurred.

Judgment modified by striking out the words “ except the defendant Henrietta Benjamin” from that part thereof adjudging the effect of the sale of the property, upon the defendants, and in other respects, so far as appealed from, reversed, with costs of appeal. 
      
      
         Sic.
      
     