Kalashen v. Till (136 A.D. 632, 1910)

Clarke, J.:

This was an action tried in October, 1907, to foreclose a mortgage. The judgment provided in case of a deficiency upon a sale for a deficiency judgment against the defendants Jacob Till and Pincus H. Greenblatt. There was a-deficiency of $4,582.05, for which judgment was entered up against the-appellant Greenblatt. The appellant in his answer, by way of avoidance, alleged that during February, 1907, he agreed with Max M. Pullman, the owner of the bond and mortgage in suit, that Pullman should accept conveyance of the equity in the mortgaged premises in release and discharge of the appellant’s personal liability for the payment of the mortgage indebtedness, and that the conveyance under this agreement was in fact executed; that plaintiff was not the real party in interest, and that Max M. Pullman was the real owner and holder of the bond and mortgage- in -suit, and as such agreed to accept in payment thereof a conveyance' of the equity of th^j mortgaged premises, which was in fact, accepted and executed by Pullman in full payment, discharge and satisfaction of the mortgage debt.

Upon the trial Lawrence E. Brown appeared for the plaintiff. He offered in evidence the agreement between Pullman and Greenblatt, dated September 10, 1906, by the terms of which Greenblatt assumed payment of the mortgage in suit, and also an assignment of the mortgage made by Pullman to Kalashen, the plaintiff, dated December 14, 1906, assigning the mortgage in suit. Kalashen testified: “ I have known Mr. Pullman for quite a' number of years. I have never been interested in real estate transactions with him. This is the first real estate transaction I had with him. The transaction with Pullman about the mortgage I had on December 14th, 1906. Q. Where was that assignment of mortgage made ? A. This was made in my place of business, because Mr. Pullman owed me $6,000, and he gave me this mortgage, you see. * * * ' I handed all the records to my attorney, Mr. Brown. * '* * I own absolutely the mortgage. Neither Mr. Pullman or any one else has any interest * * * in the mortgage. It is mine. I purchased it from Pullman.”

The defendant attempted to show conversations with Pullman between December, 1906, and April, 1907, in reference to the releasing of this liability for the payment of moneys mentioned in the bond and mortgage, the agreement made and the performance by Greenblatt by the conveyance by him. This evidence was not admitted upon the ground “ that at the time of the proposed agreement or alleged agreement the title to the mortgage was not in the defendant Pullman, and even if such agreemént was made by him it would be no consideration, for it, as lie was not the owner or holder of the bond and mortgage.” The defendant Greenblatt was, therefore,"not- permitted to prove his defense, and judgment went against him. ■

This motion for a new trial upon the ground of newly-discovered evidence was made in December, 1909. After setting up the result of the former trial-, the pleadings and the evidence, the moving affidavit states that deponent has found that Mark J. Kalashen, the plaintiff, brought a suit in the Supreme Court, Kings county, against Max.M. Pullman, as defendant, to recover $6,000 claimed as money loaned; that deponent found'this out through a lis