
    Charles H. Barson and Mary Matilda Barson, Respondents, v. Agnes K. Murphy Mulligan and William G. Mulligan, Appellants.
    First Department,
    June 18, 1909.
    Ejectment — mortgage—facts not showing agreement that mortgagee may remain in possession.
    I
    Action of ejectment: Evidence examined, and held, .insufficient to require a submission to the jury of the question as to whether the plaintiffs had agreed , that the-defendant; a mortgagee, might remain in possession of the premises until the mortgage was paid.
    Laughlin and Clarke, JJ., dissented, with opinion.
    Appeal by the defendants, Agnes K. Murphy Mulligan and another, from a judgment of the 'Supreme Court, in .favor of the plaintiffs, entered in the Gffice of the clerk of' the county of Rew York on the 13th day of January, . 1909, upon the verdict of a jury, and also from an order bearing date the 12th day of January, 1909, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes, and also, (as stated in the . ■ notice of appeal), from an order béaring date the Tth day of January, 1909, and entered' in said clerk’s office, directing the entry of .judgment. .
    
      William G. Mulligan, for the appellants.
    
      Henry A. Forster [Frederick P. Forster with him on the brief], for the respondents.
   Ingraham, J.:

The effect of the interview between the defendant and one of the . plaintiffs was not before the Court of Appeals when the ease was in that court. I. do not think that, on the testimony as it stands, there was a sufficient consent to entitle, the holder of the mortgage to be treated as a mortgagee in possession,' apjilying. the rule .laid down oil the former appeal by the Court of Appeals (191 N. Y. 306).

The judgment, and order should be affirmed, with costs.

McLaughlin and .¡Scott, JJ., concurred; Laughlin. and Clarke, JJ.„ dissented. '

Laughlin, J.

(dissenting):

This is an action in ejectment. On the first trial the plaintiffs recovered, but the judgment was reversed by this court. (Barson v. Mulligan, 66 App. Div. 486.) On the second trial the plaintiffs again recovered and the judgment was sustained on appeal. (77 App. Div. 192.) This judgment was subsequently vacated and a new trial granted, on the application of the defendants, pursuant to the provisions of section 1525 of the Code of Civil Procedure, and the order was affirmed by this-court. (84 App. Div. 642.) On the third trial the defendants recovered, but the judgment was reversed for error in the reception of evidence. (107 App. Div. 613.) The plaintiffs succeeded on the fourth trial; and the judgment entered upon that verdict was affirmed by this court (120 App. Div. 879), but it was reversed by the Court of Appeals (191 N. Y. 306) upon the ground that the trial court erred in excluding a conversation between the defendant Agnes K. Murphy Mulligan- and one of the jilaintiffs offered for the purpose of showing that after the termination of the right of the defendants to the possession of the premises, as lessees of the tenant by the curtesy, on account of his death, and at a time when she owned and held a mortgage upon which default had been made in the payment of interest, he consented that she might remain in possession as mortgagee until the mortgage was paid. On the last trial the trial court followed the ruling of the Court of Appeals and received the testimony of both defendants with respect to this conversation, but after admitting it the court ruled as a matter of law that it was insufficient to require the submission to the jury of the question as to whether or not it showed consent on the part of the plaintiffs, or either of them, that she might remain in possession as mortgagee, and refused to submit that question to the jury, to which ruling exception was duly taken by defendants.

We are of opinion that the evidence was sufficient to present a question of fact for the consideration of the jury, and that the exception to these rulings requires a reversal of the judgment. The appellant Agnes K. Murphy Mulligan testified that in this conversation which she had with the plaintiff Chai’les H. Barson she demanded payment of the indebtedness to her as security for which she held a mortgage on the premises in question; that he informed her that he and his brother, who were owners of the equity of redemption, were about to arrange to pay it and were not going to'let her remain on their property any longer; that in reply she stated, among other things, in effect, that she was going to remain in possession until the mortgage was paid ; that he replied, in effect, that she might remain in possession until the mortgage was paid, which would be soon, and that he would see his brother and let her know just when it would be paid; that this conversation was on the 6th day of October, 1897, four days after the death of the. tenant by the curtesy; and that she remained in possession, without hearing anything further from him or his' brother and without any arrangement or demand, for rent, until the thirteenth day off September thereafter, when she received a notice demanding possession of the premises. The defendant William Gr. Mulligan testified with respect to this conversation that his wife, ■who is the other defendant, informed, the plaintiff Charles H. Barson that she ■ understood that he disputed her ownership of the mortgage on account of an assignment thereof which she had made to one Steers as collateral security, and asserted to him that she owned the mortgage all the time, and then and there exhibited the bond and mortgage and a reassignment thereof to her from Steers; that plaintiff admitted that he knew she owned the mortgage; that she stated that she was in possession and that she would not move out until the mortgage was. paid; that plaintiff then stated that lie and his brother had talked the matter over and intended to pay the mortgage soon and had agreed that she might remain in possession until it was paid ; that she replied that she would execute a satisfaction of the mortgage and surrender possession of the premises as soon- as iff was paid, and requested that plaintiff let her know, when it would, be-paid, which he promised .to do; and that said plaintiff stated that he spoke for his brother as well as for himself, and that she might remain in possession until the mortgage was paid. It appears that the building on the premises in question wras used by the defendants as an office, and that upon the death of the tenant by the curtesy, the door was locked and the defendant William GL Mulligan retained possession of the key and had possession of it at the time of this conversation with one of the plaintiffs, and that thereafter his wife opened up the office and used it without molestation during the period already stated. At the close of the evidence the learned counsel for the defendants claimed in behalf of his clients that the jury might infer from this evidence, with respect to the consent of one of the plaintiffs and the long period of acquiescence of both, that there was an express consent by one and an implied consent by the other, and also that the action, having been brought'by'both of the owners of the equity of redemption, must be maintained by both. The Court of Appeals decided that the consent to the mortgagee to take possession or remain in possession need not be express but might be implied from circumstances. The effect of the decision of the Court of Appeals necessarily is, I think, that it was not essential that the defendants as lessees of the tenant by the curtesy should surrender possession before a consent could be given that they might hold possession under the' mortgage. There was no evidence before the Court of Appeals of surrender of possession as tenants, and the facts with respect to the possession were not in dispute. It was, therefore, evident that a new trial could not avail the defendants Unless the consent which is requisite to authorize a mortgagee to take or remain in possession could be given to them while they were in possession under the lease. If it was not essential to a recovery by either plaintiff that both should be entitled to possession, the Court of Appeals would not, I think, have granted a new trial as against the plaintiff Mary Matilda Barson, who, since the commencement of the action, succeeded to the rights of William G-. Barson, one of the original plaintiffs, and was substituted in his place, for there was no offer of evidence to show that William Gr. Barson gave his consent to the mortgagee remaining in possession. Moreover, the opinion of the Court of Appeals appears to assume that if one of the owners of the equity of redemption gave his consent to the mortgagee to remain in possession, that would defeat the action, for although it is held by the Court of Appeals in the opinion, in substance, that one cotenant could not bind another, yet that he could bind himself, and the court say: “As the proposed evidence was excluded, we do not know what would have been established by it, but the question under which it was sought to be elicited was broad enough to cover a transaction in which Charles H. Barson might have bound or affected his own right to possession.” And for the error in excluding that evidence the judgment was reversed and a new trial granted as to both plaintiffs. One cotenant could consent for himself, and it would seem that possession by defendants with his consent would be the same as possession by himself, and that ejectment would not lie either by one or both of the plaintiffs; but since the learned counsel for the respondents does not contend that the judgment can be sustained in favor of one respondent, we do not deem it necessary to consider this question further or to decide the point.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

■ Clarke, J., concurred.

Judgment and order affirmed, with costs.  