
    Albert Van Nostrand, Respondent, v. Dwight-Murray Realty Company and Another, Defendants, Impleaded with Jeremiah Zimmerman, Appellant.
   Judgment of the County Court of Queens county reversed upon the law and the facts, and judgment directed in favor of defendant Zimmerman, with costs, establishing the lien of the mortgage for $6,420, held by him as concurrent with the $55,000 mortgage held by plaintiff, both said mortgages to be foreclosed and to be paid equally and proportionately from the proceeds of sale. Findings of fact VI, VII, XVIII, XIX and XXV, and all the conclusions of law contained in the decision of the trial court are reversed. This court finds the eleventh finding of fact, and the first, second and third conclusions of law proposed by the defendant Zimmerman. In our opinion the evidence of the alleged oral agreement that the mortgage held by defendant Zimmerman was to be subordinated to plaintiff’s mortgage was improperly received, as its effect was to add to and vary the terms of the written agreement of May 22, 1909 (Exhibit E). Both were purchase-money mortgages, and were concurrent liens. Kelly, P. J., Manning, Kelby, Young and Kapper, JJ., concur. Settle order on notice.  