Opinion
January, 1931.
Judgment as resettled reversed upon the law and the facts, with costs, and judgment of foreclosure directed for the plaintiff, with costs. The agreement of December 18, 1929, entered into by and between the parties hereto and as explained by the letter of December 18, 1929, written to the defendants by the plaintiff, is not subject to a construction which estopped the plaintiff from foreclosing his mortgage prior to the 1st day of October, 1930, in the absence of an allegation and proof of payments by the defendants of installments of principal and interest as they became due, not only upon the mortgage under foreclosure, but upon the mortgage which was a prior lien. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made. Kapper, Hagarty, Carswell and Scudder, JJ., concur; Lazansky, P.J., concurs in result. Settle order on notice.