Sachs v. Wachsman

McLaughlin, J. (dissenting):

The agreement on the part of the defendant to procure an extension of. the time of payment of the $5,000 mortgage referred to was upon the condition that the plaintiffs held the title to the land covered by the mortgage at the time it fell due. This is evidenced by the fact that the plaintiffs agreed that if necessary, in order to procure such extension, they would “ execute a new mortgage in that sum—$5,000.” When the plaintiffs, therefore, sold the land prior to the time the extension was desired, they thereby destroyed the agreement because they put it out of their power to give a mortgage. (Eddy v. Davis, 116 N. Y. 247.) The agreement did not run with the land, nor could the plaintiffs enforce it for the benefit of a third party.

I think the judgment should be. affirmed.

Judgment reversed, new trial ordered, costs to appellants to abide event.