Schelberger v. Schelberg

Defendants in an action for money only appeal from so much of an order as denies their motion for judgment on the pleadings dismissing the complaint on the ground that it fails to state a cause of action. Order, in so far as appealed from, affirmed, with' ten dollars costs and disbursements. Issues are raised here which may not be disposed of summarily, such as whether there is not implied in the writing signed by the decedent a promise to pay the debt to secure which the second mortgage was to be given (Simon v. Etgen, 213 N. Y. 589, 594, 595; Wood v. Duff-Gordon, 222 id. 88, 91), and whether the payment of interest on the debt by the decedent for two years was not such a practical construction of the writing as to be of great probative force in determining its meaning. (Woolsey v. Funke, 121 N. Y. 87, 92; Nicoll v. Sands, 131 id. 19, 24.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur,