Opinion
February 14, 1978
In an action to foreclose a mortgage on real property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated April 19, 1977, as denied his motion for summary judgment. Order reversed insofar as appealed from, on the law, without costs or disbursements, motion granted, and action remanded to Special Term to ascertain and compute the amount due the plaintiff as principal and interest on the obligation and mortgage. The mortgage in question was executed by defendant-respondent to secure the payment of legal fees to plaintiff-appellant; the fees were set forth in a separate agreement, which had also been signed by respondent. The retainer agreement and mortgage are complete as to the services to be rendered, the amount of compensation, the method of payment and the security for payment. The respondent is therefore barred from offering parol evidence which contradicts the terms of payment as set forth in the agreement. Also, the respondent's allegations that she was led to believe that the conditions of payment would be altered in the event that plaintiff lost the case for which he had been retained, are insufficient to raise a factual issue of fraud. Martuscello, J.P., Rabin, Cohalan and Hawkins, JJ., concur.