Robert Muir, Respondent, v. Harriette T. H. Greene, Appellant, Impleaded with Charles Monash and Alexander Monash, Composing the Firm of Monash Brothers, and Others, Defendants

Robert Muir, Respondent, v. Harriette T. H. Greene, Appellant, Impleaded with Charles Monash and Alexander Monash, Composing the Firm of Monash Brothers, and Others, Defendants. First Department, October 19, 1906. Mortgage — forbearance of creditor to sue husband as consideration for mortgage by wife — effect of refusal of mortgagor to make further advances—when subsequent loan not covered by mortgage. An agreement by a creditor to extend time of payment and to make further advances is á good consideration for the execution of a mortgage by the debtor’s wife on her own property to secure the husband’s debt. This is so, although the extension is not for a definite time, if in fact it is followed by a long forbearance. The creditor’s subsequent refusal to make further advances does not invalidate the mortgage, but at most gives a cause of action against him for damages. A subsequent loan to the husband not made part of the debt secured or understood to be covered by the mortgage at the time the loan was made cannot be brought under the mortgage by a subsequent agreement between the creditor . and the mortgagor’s husband when not assented to by her. Appeal by the defendant, Harriette T. H. Greene, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county óf Hew York on the 28th day of December, 1905, upon the decision of the court, rendered after a trial at the Hew York Special Term, directing the foreclosure of a mortgage described in the complaint. . The mortgage under foreclosure was given in "July, 1901, by the defendant, Harriette T. H. Greene, on real estate personally owned by her to secure a debt of her husband to one Joseph Brockway, the assignor of the plaintiff. Mrs. Greene assumed joint and several liability and the consideration recited was the extension of the time of payment and the agreement of Brockway to advance further sums not to exceed $600. Demand for payment was made in December, 1904. Thaddeus D. Kenneson, for the appellant. Bela D. Eisler, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: Brockway’s agreement' to extend Greene’s time for the payment of his indebtedness, although not put in the form of an enforcible contract for a definite time, was in fact followed by long forebearance, and ■ consequently, being made at Mrs. Greene’s request, fiirnislied sufficient consideration for the mortgage, (Strong v. Sheffield, 144 N. Y. 392.) Broclcway’s refusal to make further advances when requested did not servé to invalidate the mortgage. At most it could only have furnished a cause of action against him.. We are unable to find any evidence, however, that Mrs. Greene ever consented that the fifty dollars subsequently loaned should be included in the amount to be secured by the mortgage. Concededly this loan was not made as part of the future advances for which the mortgage was, in part, made, and neither party understood or intended when this sum was loaned that it was to be covered by the mortgage. ' The agreement to that effect was made afterwards" by Greene and Brockway, and apparently "Mrs. Greene neither knew of this or assented to it. The judgment must, therefore; be modified by deducting from the principal sum found due the sum of fifty dollars, with a corresponding reduction of interest and allowance and as so modified must be affirmed, without costs. Present — O’Brien, P. J., Ingraham, . Clarke, .Houghton and Scott; JJ. Judgmént modified as directed in opinion and as-modified affirmed, without costs. Settle order on notice.