
    Pasquale Patrono, Respondent, v. Pasquale Patrono and Joseph Patrono, Appellants.
    Second Department,
    June 5, 1908.
    Real property — equitable mortgage —redemption.
    Plaintiff purchased lands, the consideration to be paid in installments, secured by a purchase-money mortgage, and took possession under the contract.
    He assigned the contract to the defendants, reserving a .right to a reassignment under certain conditions. Subsequently all the parties assigned the contract to a third party, and the plaintiff expressly waived his rights to a reassignment on condition that the third party perform certain obligations. Without performing such obligations the third party canceled his contract and reassigned to defendants all their former rights. The plaintiff having performed the necessary conditions sued for a reassignment to him.
    
      Held, that under the first contract plaintiff was an equitable owner of the premises and entitled to a reconveyance, the subsequent dealings with the" third party being immaterial;
    That although not a party to the reassignment to the defendants he affirmed the same by bringing action.
    Appeal by the defendants, Pasquale Patrono and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the loth day of March, 1907, upon the decision of the court rendered after a trial at the Westchester Special. Term.
    
      William A. Walsh, for the appellants.
    
      Thomas A. McKennell, for the respondent.
   Jenks, J.:

The defendants appeal from a judgment of the Special Term in favor of the plaintiff. On April 15, 19Ó4, the plaintiff made a contract with Bradley for the purchase of realty in consideration of $2,400, payable in installments and by the execution of a purchase-money mortgage. Pursuant to this contract the plaintiff- took possession of the premises under an agreement embodied in the contract to pay as rent therefor both interest upon the amount of. the purchase price remaining unpaid and the taxes and assessments. That contract was extant on October 7, 1905, when the plaintiff was sent to the penitentiary for 6 months. On .November 22 1905, the plaintiff .executed a writing whereby, in consideration of the sum of $1, he agreed to sell, assign, transfer and set over to the defendants (his uncle and eonsin respectively) all his fight, title and interest in the Bradley contract. This writing provided that the said defendants were to make all payments under the terms of said contract; that the plaintiff should have a period of 6 months after his release from the. penitentiary to reimburse them for such advances, and in case of his failure to do so the title to the property’ should become vested in the defendants. On April 17, 1906, the the plaintiff and the defendants executed a certain agreement in writing with Kosstrin, whereby they assigned and sold all their right, title and interest in and to the Bradley contract, and whereby it was provided that Kosstrin was to take the agreement as of April 16,1906, the adjustments of rents, interest and insurance to be made at that time ; that Kosstrin was to pay the taxes for 1905 and. in addition thereto the sum of $2,900, less $100 paid at the time of the signing, and less any or all amount which at the time of the closing should be due'the said Bradley or should be alien on the said premises. The writing provided that the closing or time of final payment should be on the 16th day of May, 1906, and that the plaintiff “consents to this agi-eement and ratifies the same, and waives his right to redeem from the said Pasqnale Patrono and Joseph Patrono” (the defendants in this case). On May 9, 1906, the said Kosstrin and the defendants executed a writing whereby in consideration of the sum of $225 paid by defendants to Kosstrin, Kosstrin “ releases the said Pasqnale Patrono and Joseph Patrono (these defendants) from all the terms of an agreement between these parties made the 17th day of April, 1906, and reassigns to the said Pasqnale Patrono and Joseph Patrono (these defendants) all their rights under the foregoing annexed agreement dated the 15th day of April, 1904, between Andrew R. Bradley and óne Pasqnale Patrono (this plaintiff) which was assigned to them on the 22nd day of Movember, 1905. The said Two hundred and twenty-five ($225) dollars includes One hundred ($100) dollars paid by the said Max Kosstrin to the said Pasqnale Patrono and Joseph Patrono.”

This action is to compel a reassignment to the plaintiff by the defendants of the Bradley contract, the plaintiff asking to redeem the contract and have an accounting of the rents collected by the defendants and the disbursements made to keep the Bradley contract alive and to preserve the property.

I am of opinion that the findings of the Special Term are supported by the evidence, that the conclusion of the Special Term is right, and that the judgment must, be affirmed. Perforce of the Bradley contract the plaintiff was the equitable owner of the premises (Hays' Administrator v. Miller, 6 Hun, 320, 326; affd., 70 N. Y. 112, 118 ; Rood v. N. Y. & Erie R. R. Co., 18 Barb. 80; Moore v. Burrows, 34 id. 173), and his agreement with the defendants is regarded as an equitable mortgage. (Brayton v. Jones, 5 Wis. 117; Northrup v. Cross, Seld. Notes [2d ed.], 111; Gamble v. Ross, 88 Mich. 315, 330; Meigs v. McFarlan, 72 id; 194.) The first contract with Kosstrin contemplated Kosstrin’s performance of his obligation, and. plaintiff’s waiyer therein was conditional upon that performance. But Kosstrin did not perform. He did not even undertake by that writing of May 9 to assign his contract to the defendants, for in the first place the purpose as expressed therein is cancellation of that contract, and in the second place he only undertook to re-assign ” to the defendants their rights under the contract of the plaintiff with Bradley as assigned to them by the plaintiff on November 22, 1905. So far as the defendants.are concerned, their rights as to these premises are expressed exclusively in and limited exclusively by the assignment to them by the plaintiff, As against the plaintiff they gain nothing from Kosstrin. As to the plaintiff, although he was not a party to the agreement of Kosstrin and the defendants of May 9, 1906, nevertheless he has elected by his present action to affirm the cancellation óf Kosstrin, inasmuch- as this action rests upon the plaintiff’s assertion of his equitable ownership of the premises. In fine, the dealings with Kosstrin are of - no moment so far as the relative rights of these parties in the premises are concerned.

The judgment is affirmed, with costs.

Hooker, Gaynor, Rich and Miller, JJ., concurred. ■

Interlocutory judgment affirmed, with costs.  