Van Bokkelen v. Taylor

I think the court erred in excluding evidence offered by plaintiff, as to what took place at the time of the delivery of the release in question. The plaintiff was attempting to foreclose a mortgage, executed to him by the defendant in 1857. He claimed that this mortgage was, in 1860, assigned by him to his brother, Adam Van Bokkelen; that Adam continued to own the same until 1873. The release is dated in 1868, and purports to release all claim which plaintiff had against Taylor. The evidence rejected was admissible upon two grounds.

In the first place, the plaintiff was entitled to prove that Taylor knew, r.fc the time of the delivery of the release, that the mortgage in question belonged to plaintiff’s brother, and could not be released by plaintiff, and 'was not covered by his release to defendant.

In the second place, it was competent for plaintiff to prove that the delivery of the release depended upon a condition which had not happened.

Judgment reversed, and new trial granted, costs to abide event.

Present—-Barnard, P. J., and Talcott, J.

Judgment reversed and new trial granted, costs to abide event.