Zubow v. Teggiano & Co.

The appellant made no attempt to prove the defense alleged in the answer, but was permitted to litigate the question of payment on plaintiff’s mortgage, although not pleaded. We have, however, examined the evidence, and think that the mortgagor and plaintiff agreed that the first payment of $225, on June 16, 1916, was to be applied to the mortgage; and we, therefore, make a finding to that effect. The rents received by plaintiff while in possession pending the motion were not applicable in extinguishment pro tanto of 915 the mortgage, but may be the subject of an accounting. (Hubbell v. Moulson, 53 N. Y. 225.) The judgment is modified by deducting therefrom the sum of $225, together with interest thereon from June 16, 1916, to the date of said judgment, and as so modified unanimously affirmed, without costs. Present — Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.