New York Title Insurance v. Gerdes 248 A.D. 833

In an action to foreclose a mortgage, judgment of foreclosure and sale and dismissing the appellant’s counterclaim or offset of certain mortgage certificates held by her affirmed, with costs. There was ample proof to justify a determination that the assignments were made after March 15, 1933, and, therefore, no basis existed for a set-off under section 420 of the Insurance Law. Lazansky, P. J., Carswell and Taylor, JJ., concur; Young and Johnston, JJ., dissent and vote for reversal and the direction of judgment for the appellant, allowing her counterclaim as an offset to the extent of the amount due on the bond and mortgage in question and dismissing the complaint, being of opinion that the appellant is entitled, under section 420 of the Insurance Law, to offset her claim upon the mortgage certificates held by her against the amount due on the mortgage.