Eleventh Ward Savings Bank v. Hay , 55 How. Pr. 438 ( 1877 )

Van Brunt, J.

All the documentary evidence in this case is entirely inconsistent with the theory that Mr. Koehler paid the five thousand dollars ($5,000) on the mortgages in suit at the time the plaintiffs took the assignment of them, if he made the payment on account of the principal of these mortgages, why did he execute a bond to pay forty-five thousand (45,000) dollars when the mortgages should become due?

Why did the bank give its checks for forty-five thousand dollars ($45,000) to Koehler’s ©wn order, and Koehler indorse them over to the holders of the mortgages ?

Why did Mr. Koehler draw his check to Mr. Loew individually and not to the plaintiffs ?

In the face of these circumstances it seems to me certain that the payment was not intended to apply upon the principal of these mortgages.

The payment of the one thousand dollars ($1,000) is equally well accounted for.

As to the strictures passed upon the conduct of the president of the bank, they cannot be considered here; whether he acted legally or illegally in taking the money, cannot in any case affect the plaintiff’s claim.

The plaintiff is entitled to judgment of foreclosure and' sale for the full amount claimed.

The only other question necessary to consider is that of consolidation.

If the motion to consolidate had been made properly, I think it would have been the duty of the court to have granted it, but in a case where such motion is delayed until the causes are called for trial it seems to me that the defendant has been guilty of such laches as to deprive him of his claim for this relief.

From the judgment the defendant Koehler appeals.

Joseph Bellshevm, for respondents. A". C. Anderson and Albert Qa/rdozo, of counsel.

I. The statute authorizing consolidation of suits relates only to actions at law; foreclosure cases, being suits in equity, will not be consolidated (See Statute: 2 Edmonds Stat. at Large, p. 398; 2 Waite's Pr., pp. 555 and 556).

(a.) All the cases cited by the counsel for the appellants are suits at law, and it is confidently asserted that he can find none in equity.

(b.) The language of the statute shows that it was the practice at law, and not in chancery, that the legislature was regulating. *-

At all events, the great delay in making the motion was a sufficient reason for its denial, for the statute provides that the court may, in its discretion, if it shall appear expedient, order the consolidation.

Kaufma/n, Timstdll & Wagner, for appellants.

Daly, O. J.

The first question raised in this case, a question of fact, was whether the $5,000 was paid upon the mortgage or to Loew in consideration of his getting the plaintiffs to take the mortgage. Upon that question, Koehler and Loew were in direct conflict, and although the conduct of Loew, as the president of a savings bank, and one of the finance committee of the institution in advocating in the committee, and getting the bank to take a mortgage of $45,000, for which service Koehler was to pay and did pay him $5,000, was extraordinary in the chief officer of such an institution ; yet we cannot say, as between the witnesses who directly contradicted each other that the judge below decided erroneously, as he put his decision upon the ground that Koehler at the time gave his bond for $45,000, when if the $5,000 had been received by the bank as a payment upon the mortgage, the bond should have been in $40,000; as well as upon another equally significant circumstance that the bank drew the check for $45,000 to Koehler’s own order, and he endorsed it to the owner of the mortgage and he drew his check for $5,000 to Loew individually instead of to the bank.

These cotemporaneous documentary facts and the continuous payment afterwards to the bank by Koehler of interest on $45,000 were circumstances strongly against his version of the transaction, and we cannot say that the judge was wrong in attaching to them the weight which he did.

As respects the second question of fact Loew testified that Koehler gave the $1,000 as a bonus to the insurance company to secure the transfer of the other mortgage to the plaintiff, and that he, Loew, when he received it, paid it over to the insurance company and Koehler’s statement in respect to this transaction was so loose and unsatisfactory, as to justify the judge in finding against him. If the defendant wished to have the suits consolidated, he should have moved beforethey were brought on for trial. The usual course is to move before trial, that the other party may have an opportunity to read affidavits and be heard as upon an ordinary motion before trial. It was a matter of discretion with the judge, and as he put his denial of the motion upon the ground of the defendant’s laches, there is no reason why an appellate tribunal should now order the suits to be consolidated (Wait's Pr., vol. 2, pp. 557, 558).

The motion for a new trial, therefore, should be denied.

The judgment and order appealed from are affirmed with costs (ten dollars costs and disbursements of affirmance of order).

J. F. Daly and Vast Hoesen, J., concurred.

Note. —An appeal was taken to the court of appeals and on April 16, 1878, the cotut affirmed the judgment, with costs.—[Ed.