Sichenzia v. De Simone 241 A.D. 823

Judgment reversed on the law and a new trial granted, costs to appeEant to abide the event. The issue tendered by the pleadings was whether the plaintiff made a loan of $4,000 to the defendants. At the close of the plaintiff’s case the testimony adduced by the plaintiff in support of his claim was struck out, on motion, on the ground that it tended to vary the terms of a mortgage made to the plaintiff, subsequently to the transaction, by a corporation not a party to the action. One of the defenses pleaded was that the loan was made not to the defendants but to that corporation. In so far as the record discloses, the mortgage was but coEateral security for the loan. Plaintiff made out a prima facie case amply supported by proof. The court erroneously struck out the testimony. Lazansky, P. J., Young, Kapper, Hagarty and Davis, JJ., concur.