Guarracino v. Lagana

Judgment reversed upon the la.w and the facts and a new trial granted, costs to abide the event. The evidence did not establish express authority in Scotto to accept on behalf of the plaintiff the payments which it was stipulated were made. The evidence did not establish that such payments as were made “ at various times ” by the respondents to Scotto, were made under circumstances that bound the plaintiff, because the evidence does not disclose that the payments which were made “ at various times ” were made after the principal upon the mortgage, as extended, became due. The burden to establish the fact that the payments were made at a time when they would be binding upon the plaintiff, rested upon the respondents and the evidence herein does not reveal a sustaining of that burden. A new trial is granted in order to enable a segregation to be made of the payments, if any were in fact made, under circumstances binding under the scrivener’s rule, one element of which is that such payments must be made when the principal is due. (Central Trust Co. v. Folsom, 167 N. Y. 285; Hoffman v. Froma Realty Co., 153 App. Div. 770, 774; Smith v. Kidd, 68 N. Y. 130, 141.) Findings of fact numbered fourth and seventh and conclusions of law numbered first and second are reversed. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.