
    Hattie Rothschild and Bell F. Trier, Individually and as Executors of and Trustees under the Last Will and Testament of Caroline Strauss, Deceased, Respondents, v. Title Guarantee and Trust Company, Appellant.
    Second Department,
    July 29, 1910.
    Estoppel—forgery of name of mortgagor—payment of interest — ratification.
    Where a son forged his mother’s name to a mortgage, two payments of interest made by her after discovering the forgery, and without informing the mortgagees thereof, do not as a matter of law estop her executors from attacking the validity of the instrument in the absence of proof that the mortgagees were thereby prevented from enforcing any remedy of that their position was changed to their disadvantage.
    Nor do the payments amount to a ratification of the unauthorized act of the son.
    Appeal by the defendant, the Title Guarantee and Trust Company, from a judgment of the Supreme Court in favor of .the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of October, 1909, upon the decision of the court rendered after a trial at tlie Kings County Special Term.
    
      Edward M. Perry, for the appellant.
    
      Edward T. Horwill, for the respondents.
   Hirschberg, P. J.:

The judgment herein directs the defendant to give up a mortgage recorded in the register’s office of the county of Kings to be canceled and discharged of record, and to execute and deliver to the plaintiffs a satisfaction for that purpose. The mortgage covers real estate owned at the time of its date by Caroline Strauss, now deceased, and it is conceded that her signature to the instrument was forged by her son. The record contains none of the evidence taken on the trial, and the appeal has been heard and is to be determined solely upon the judgment roll and the facts found by the learned trial justice on the defendant’s requests and the exceptions taken by defendant to the findings of law. The point presented is that Mrs. Strauss made some payments of interest on the bond and mortgage after the discovery of the forgery whereby, the appellant claims, she became estopped from afterwards denying the validity and integrity of the instrument.

It seems unnecessary to analyze the many cases presented by the learned counsel for the appellant, inasmuch as none of them holds that the mere payment of the interest money, with a knowledge of the forgery and without disclosing that fact, estops the plaintiff in the absence of any proof that the holders of the instrument were thereby prevented from enforcing any remedy in their power, and in the absence of any proof that their position in the premises was thereby changed to their disadvantage. The court has found as a fact that Mrs. Strauss made two payments of interest with knowledge of the forgery. She died shortly after the second payment. The court has also found, presumably .on sufficient evidence, that such payments were made without fraudulent or wrongful intent, and has refused to find that they were made with any design of shielding her son from the consequences of his wrongful act, or that the payments in any way prevented the holder of the mortgage from discovering the forgery or from taking any lawful steps which might have resulted in the recovery from the wrongdoer of the amount of the loan secured by the. mortgage or any part of it.

In the circumstances it cannot be said as matter of law that there was such a duty upon the deceased to disclose the infirmity of the .security, when she discovered it, as to- create an equitable estoppel on her failure to do so. It cannot be said that the mere payment of interest ratified the unauthorized and unlawful act of her son in forging her name, and it follows that the judgment should be affirmed.

Bubr, Thomas and Rich, JJ., concurred.

Judgment affirmed, with costs.  