
    Ann Odes and Bosilia, Inc., Appellants, v. Troia Realty Co., Inc., Respondent, Impleaded with Others, Defendants.
   Judgment reversed on the law and the facts, with costs, and judgment directed for plaintiffs for the foreclosure of the mortgage in question, with costs. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made. In our opinion, the evidence shows that respondent affirmed the bond and mortgage in question and waived any fraud, and the plaintiffs are entitled to judgment of foreclosure. Appeal from the order denying plaintiffs’ motion for a new trial on the ground of newly-discovered evidence dismissed, without costs, as unnecessary in view of our disposition of the appeal from the judgment. Young, Scudder and Tompkins, JJ., concur; Lazansky, P. J., and Davis, J., dissent from the direction for judgment and vote for reversal and a new trial, costs to appellants to abide the event, with the following memorandum: The court found that respondent was defrauded in the transaction; and if respondent had set up a counterclaim for the amount of the damages, they could hav e been offset as against the amount of the bond and mortgage. (Vail v. Reynolds, 118 N. Y. 297.)  