The following opinion was written at special term :
Van Brunt, J.All the documentary evidence in this case is entirely inconsistent with the theory that Mr. Koehler paid the $5000 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 $45,000 when the mortgages should become due ? Why did the bank give its checks for $45,000 *330to Koehler’s own order, and Koehler endorse 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 $1000 is equally well accounted for. As to the strictures passed upon the conduct of the president of the hank, they cannot he considered here. Whether he acted legally or illegally in taking this money cannot in any way affect the plaintiff’s claim. The plaintiffs are entitled to judgment of foreclosure and sale for the full amount claimed.
Kaufmann, Tunstall Wagner, for appellant. A. 0. Anderson £ Albert Cardozo, for respondent.The only other question necessary to consider is that of consolidation. If the motion to consolidate had been made promptly, 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 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.”
Charles P. Daly, Chief J.Justice.—The first question raised in this case, a question of fact, was, whether the $5000 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 $5000, 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, *331when, if the $5000 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 drew his check for $5000 to Loew individually instead of to the bank.
These contemporaneous 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 $1000 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 before they 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 ($10 costs and disbursements of affirmance of order).
Joseph F. Daly and Van Hoesen, JJ., concurred.
Judgment and order appealed from affirmed with costs.*
The judgment entered on this decision was affirmed by the Court oí Appeals, April 16th, 1878. (See 73 N. Y. 609.)