
    Sophie G. Parker, Resp’t, v. Theresa B. Collins et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Mortgage — Consideration.
    One O. having filed a mechanic’s lien for $2,100 against defendant’s property, the latter executed and delivered to him a mortgage for $1,700 and her husband paid him $200. Defendant claims that the mortgage was given as security for the lien until the claim could be adjusted and that such claim was in reality only valid to the extent of $900. Plaintiff, the assignee of the mortgage, claims that it was given absolutely in settlement of the lien. Plaintiff’s husband, O. and another witness testify to the latter version and defendant’s husband to the former. The referee found that the mortgage was given in settlement. Held, no error; that this was in accordance with the probabilities of the case, and that the fact that plaintiff paid only $900 for the assignment constituted no defense.
    Appeal from judgment in favor of plaintiff, entered on tlie report of a referee.
    Action to foreclose a mortgage on real estate.
    
      Horace Graves, for app’lts; A. W. Parker (GD. Rust, of counsel), for resp’t.
   Barnard, P. J.

The complaint is an ordinary complaint in an action for the foreclosure of a mortgage and the full amount of the. mortgage with interest upon it was claimed to be due. The defendant, Theresa B. Collins, her husband and defendant Dieter, answured and claimed that only §900 was due upon the mortgage. This is probably the effect of the answer, although the averment therein is “ that the sum of $900 only has been advanced upon said bond and mortgage, and that amount only with interest from May 5, 1889, is due thereon.” The mortgage was given to defendant O’Keefe, and assigned to the plaintiff. Upon the trial the defendants aslced of the plaintiff’s husband what was paid by Mrs. Parker to O’Keefe for the mortgage. If the answer was framed to prove under its averments that only $900 was paid for the mortgage, that fact, if true, would constitute no defense. The trial before the referee developed a great conflict between the witnesses. Theresa B. Collins was building a house. O’Keefe had done work and furnished materials for its construction and had put on a lien for a balance claimed by him to be due. The lien was for $2,197.28. On the 5th of May, 1888, the husband and agent of Mrs. Collins, Mr. Parker, the plaintiff’s husband, and O’Keefe, met at Mr. Parker’s office. Two hundred dollars was paid by Collins to O’Keefe, and a mortgage was given (the one in question) for $1,700, having a year to run without interest. The question of fact and the only material one was whether the O’Keefe lien was paid by the mortgage and the $200, or was $200 paid and the $1,700 mortgage given to secure the claim of O’Keefe to be subsequently adjusted. Parker, O’Keefe and Doody all testify that the payment of costs Shd the $1,700 mortgage were given in unconditional settlement of the claim. Mr. Collins testifies to the contrary.

The referee has found that the mortgage was given in settlement of the lien. This is in accordance with the probabilities of the case. O’Keefe had a lien and the intent was to remove it. Almost $300 was deducted from his claim, besides the interest on the mortgage for a year, so as to give opportunity to the owner to sell the house and pay the mortgage. The bond and mortgage call for unconditional payment of the amount of the mortgage. When the mortgage was given, the $200 was paid at Collins’ request by Parker to O’Keefe, accompanied by a statement made by both O’Keefe and Collins that the mortgage and cash paid are in full settlement of the claim between Collins and O’Keefe. The defendant’s testimony would not agree with the answer. Assuming its accuracy, there was hut $700 due of principal.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  