June 16, 1943.
Present — Crosby, P.J., Cunningham, Dowling, Harris and McCurn, JJ.
Judgment reversed on the law and the facts, with costs, and counterclaim dismissed and judgment directed in favor of plaintiff for the relief demanded in the complaint. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made. Memorandum: No bond accompanied the mortgage in question. McCabe agreed to assign the mortgage but not the debt to the defendants. A transfer of a mortgage without the debt is void. ( Merritt v. Bartholick, 36 N.Y. 44; Real Property Law, §§ 249, 251.) The agreement between McCabe and the defendants was not acknowledged or witnessed as required by section 290 Real Prop. of the Real Property Law and was not, therefore, a conveyance. ( Dunn v. Dunn, 151 App. Div. 800; Nellis v. Munson, 108 N.Y. 453; City of New York v. New York S.B. Ferry Co., 231 N.Y. 18; Sleeth v. Sampson, 237 N.Y. 69, 72.) The plaintiff was a purchaser of the mortgage and the mortgage debt in good faith and for a valuable consideration within the meaning of section 291 Real Prop. of the Real Property Law, and the agreement upon which the defendants rely is void as against the plaintiff's assignment which has been duly recorded. By accepting the assignment from McCabe, the plaintiff extended McCabe's time to pay his debt, and materially changed his own position by so doing and by surrendering to McCabe the note McCabe had given him for $605 and by surrendering to McCabe the original record of his purchases. Thus he became a purchaser for a valuable consideration. ( O'Brien v. Fleckenstein, 180 N.Y. 350.) The judgment should be reversed and judgment of foreclosure and sale be directed for the plaintiff. All concur. (The judgment dismisses plaintiff's complaint and directs plaintiff to specifically perform an agreement to assign a mortgage.)