Judgment of foreclosure reversed, on the law and on the facts, and a new trial granted, with $50 costs to abide the event.
The question involved is whether the instrument sought to be foreclosed is a mortgage. (Kommel v. Herb-Gner Constr. Co., 256 N.Y. 333, 337.) Defendant-appellant alleges it received no part of the principal sum of the indebtedness alleged to be secured by the instrument sought to be foreclosed. Plaintiff delivered to his attorney two checks...
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