Staley v. Nellis 231 N.Y. 521

Jacob W. Staley, as Executor of Jacob Stalee, Deceased, Respondent, v. Mary E. Nellis et al., Appellants, Impleaded with Others.

Mortgage—foreclosure — defense of res adjudícala — evidence—objection, under Code Civ. Pro. § 829, to testimony of admissions by deceased mortgagor — transcript of testimony as to said admissions given on former trial before death of mortgagor properly admitted.

Staley v. Nellis, 188 App. Div. 325, affirmed.

(Argued March 10, 1921;

decided March 24, 1921.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 8, 1919, unanimously affirming a judgment in favor of plaintiff entered upon *522a decision of the court at a Trial Term- without a jury. The action was to foreclose a mortgage on real property. The defense was res adjudicata and that testimony of certain admissions was inadmissible. The mortgage was given by Michael D. Murray to Jacob Stalee, and the first action was brought by the mortgagee’s executors for foreclosure. The executors proved that a bond was not found with the mortgage and none could be found. The absence of the bond, with no proof of the amount due, led to the judgment dismissing the complaint on the ground that there was no evidence of the amount unpaid. The second action proceeded upon the theory that there was no bond accompanying the mortgage. Upon the first trial Murray wa's present and both executors swore that he had admitted to them that there was no bond and that the mortgage was unpaid. At this trial, Murray having died, his executors were parties defendant in his place. The plaintiff proved that Murray recognized the continued existence of the mortgage, and the surviving executor was asked as to the admissions of Murray. Upon the objection that the evidence was inadmissible under' section 829 of the Code of Civil Procedure the plaintiff put in evidence his testimony as to said admissions, given by him upon the former trial when Murray was present, and also the evidence at said former trial of his coexecutor, then deceased, to the same effect.

Andrew J. Nellis for appellants.

Horton D. Wright for respondent.