Opinion
286 A.D. 1127 146 N.Y.S.2d 410 Phoebe EINZIG, Appellant, v. Antonia AULISIO, Respondent. Antonio AULISIO, Defendant and Third-Party Plaintiff-Respondent, v. William ZANG, Third-Party Defendant-Respondent. Supreme Court of New York, Third Department November 16, 1955.
Aaron E. Klein, Kingston, for appellant.
Saccomans&s DiDonna, Kingston, for Aulisio, respondent.
Napoletano, Kellys&sSaccoman, Kingston, for Zang, respondent.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and ZELLER, JJ.
PER CURIAM.
Appeal from an order of the County Court of Ulster County denying the plaintiff's motion for summary judgment.
Under the elementary rule, for the purpose of determining whether a motion by a plaintiff for summary judgment should be granted, the defendant's version of the facts must be accepted with respect to all points as to which there is a bona fide controversy of fact.
The version of the facts given in the affidavits submitted by the original defendant and by the third-party defendant is as follows: The Kingston Poultry Company, Inc., a corporation of which the third-party defendant Zang was the president, borrowed $5,000 from the plaintiff, to be repaid in monthly installments with interest at the rate of 2% per month. As security for the loan, a chattel mortgage was given on certain personal property owned by the corporation, including a refrigerated show case. As additional security, a third mortgage was given by Zang and his wife upon certain real estate owned by them. Subsequently, the corporation went out of business, owing the plaintiff approximately $5,000, including accrued interest. According to the defendants' affidavits, the plaintiff wished to acquire the real property which had been mortgaged as additional security and, accordingly, the plaintiff's attorney entered into an oral agreement with Zang under which Zang agreed to urge the first mortgagee to foreclose its mortgage and to refrain from interfering with the progress of the foreclosure action, so that the plaintiff could buy in the property and resell it at a profit, in return for which the plaintiff agreed through her attorney that she would apply any profit realized by her upon the transaction to the indebtedness of Zang and his corporation and that, if the amount of the profit realized was in excess of the balance owing by them, the indebtedness would be deemed satisfied in full. The foreclosure sale was accordingly held, the third-party defendant Zang refrained from bidding at the sale and the plaintiff through her nominee bid in the property for $8,800 and then resold it for $14,000.
Zang subsequently sold the refrigerated show case which had been covered by the chattel mortgage to the defendant Aulisio. This action was brought by the plaintiff to replevy the show case upon the ground that she had become the owner thereof upon default in payment of the chattel mortgage. After the interposition of an answer and the joinder of the third-party defendant, the plaintiff moved for summary judgment
The denial of the motion was plainly correct. Under the terms of the oral agreement, the indebtedness secured by the chattel mortgage had been fully satisfied and discharged by the receipt by the plaintiff of profits upon the resale of the real property in an amount in excess of the indebtedness. The plaintiff relies upon a provision in the chattel mortgage to the effect that 'This instrument may not be changed orally' and argues that, in view of this provisions, sections 33-a and 33-c of the Personal Property Law forbid the giving of legal effect to the oral agreement. These sections have no application here. This is not a case of an executory agreement to modify or discharge a written agreement containing the statutory provision. It is rather a case in which there has been an actual receipt by the creditor of payment in full by an agreed upon method. The fact that the plaintiff has not executed a formal discharge or satisfaction of the chattel mortgage is of no materiality, if the indebtedness has in fact been paid, and, upon the defendants' version of the facts, the trier of the facts would be justified in finding upon the trial that such payment had been made.
Order appealed from unanimously affirmed, with $50 costs.