Opinion
May 25, 1942.
Order denying defendants' motion for summary judgment in a foreclosure action, and denying their motion for reargument of the original motion, affirmed, without costs. No opinion. Lazansky, P.J., Hagarty, Johnston, Adel and Close, JJ., concur. Order denying plaintiff's motion for summary judgment in a foreclosure action reversed on the law, without costs, and the motion granted, with ten dollars costs. It is undisputed that the bond and mortgage were under seal. Consequently, the defense of no consideration is not available to the mortgagor. ( Cochran v. Taylor, 273 N.Y. 172.) The assignment recites that it is given to a bank as collateral security for a certain indebtedness concededly owing to the bank. Under such circumstances the assignor is estopped from claiming that there was no consideration for the assignment. ( Rothschild v. Manufacturers Trust Co., 279 N.Y. 355; President Directors of Manhattan Co. v. Cocheo, 256 App. Div. 560.) The affidavits and documentary evidence establish that the mortgagor paid on account of the bond and mortgage various sums totaling several thousand dollars. Such payments destroy her alleged denials that she had no knowledge that the bond and mortgage were held by the bank and she also is estopped. Lazansky, P.J., Hagarty, Adel and Close, JJ., concur; Johnston, J., dissents and votes to affirm.