Carl D. Lunstedt, Respondent, v. Hans Levi, Appellant, et al., Defendants; Carl D. Lunstedt, Respondent, v. Hans Levi, Appellant, et al., Defendants

Carl D. Lunstedt, Respondent, v. Hans Levi, Appellant, et al., Defendants. Carl D. Lunstedt, Respondent, v. Hans Levi, Appellant, et al., Defendants. [MAJORITY] Appeal from orders granting summary judgment pursuant to rule 113 of the Rules of Civil Practice, the first being in an action to foreclose a mortgage and the second an action for money judgment on a bond. In granting the motions, Mr. Justice Tatlor at Special Term wrote memorandum decisions in both cases. In answer to the complaints in both actions, defendant Hans Levi (the only appellant) along with certain denials, interposed separate defenses in each action, the substance of which was that a new agreement between the plaintiff and other defendants (not appearing herein) relieved Levi from his obligations in both actions. He relied substantially upon a letter from defendant Laytham to his attorney. Without taking each case separately, there is no basis for the contention of Levi. His position might be somewhat more tenable if it were substantiated by a detailed affidavit of Laytham as to the agreement, if any, its terms, conditions and obligations. The letter to which plaintiff was in no way a participant or actor presents no question of fact in these proceedings. The appellant raises the further question that as a result of the negotiations he became a surety. The record shows that at all the times the defendant Levi continued to be the title holder and therefore remained as a principal regardless of any agreement between himself and Laytham. Orders appealed from affirmed, with $10 costs to the respondent. Bergan, J. P., Gibson, Herlihy and Reynolds, JJ., concur.