Opinion
December, 1932.
Present — Lazansky, P.J., Young, Carswell, Scudder and Tompkins, JJ. Settle order on notice.
Judgment modified by striking out the provision that plaintiff shall pay to defendant Bankers Loan and Investment Company, or its attorney, the sum of $1,579.35, and the provision which directs that in case the plaintiff or her agent or assignee shall elect to become the purchaser of the premises, she shall pay said sum of $1,579.35 to defendant bank or its attorney, or so much thereof as the purchase price will pay of the same. The judgment is further modified so as to provide that the counterclaim of said defendant be dismissed, without costs. As so modified, the judgment, in so far as appealed from, is unanimously affirmed, without costs. The findings of fact supported by the evidence disclose that the plaintiff changed her position in reliance upon the record of tax payments, which payments were made without the knowledge of the plaintiff by the Bankers Loan and Investment Company by mistake and under circumstances showing negligence. But for these payments thus recorded, the plaintiff would have been in a position to act earlier in the enforcement of her rights under her mortgage. ( Weil v. City of New York, 179 App. Div. 80, 85; affd. on opinion below, 223 N.Y. 599.) Conclusion of law numbered "first," in so far as inconsistent herewith, is reversed and a new conclusion dismissing the counterclaim is added.