I dissent from the prevailing opinion in this case. When the action was instituted to foreclose the mortgage it was notice to the mortgagor that he was required to pay the same, and thereupon he proceeded to make arrangements to raise the money to comply with the demand thus sought to be enforced against him. After the mortgagor had made such arrangements and obtained the *292money elsewhere, it did not rest in the volition of the insurance company to discontinue its foreclosure > action and insist upon the payment secured to be paid by the terms of -the special contract. Having compelled action by the mortgagor there was no authority in the mortgagee to change the position of the mortgagor which had been created by the foreclosure action. Having obligated himself to take the money from a third party by the ac.tion of the mortgagee he became entitled to pay off the mortgage and a discontinuance of the foreclosure action could not affect such right. When, therefore, the defendant exacted as a condition of receiving the money the payment' of the $1,000, it was such duress as will permit of its recovery back. (Bates v. N. Y. Ins. Co., 3 Johns. Cas. 238; Buckley v. Mayor, 30 App. Div. 463; affd., 159 N. Y. 558.) As the plaintiff was required to pay the $1,000 in order to procure a discharge of the. mortgage, which he was required to have discharged as a condition of obtaining the new loan, it constituted an unlawful exaction. I think the judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment and order affirmed, with costs.